Dan Glaun v. Massachusetts State Police (SPR 20190232)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 20, 2019 SPR19/0232 Michael Halpin, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Dan Glaun appealing the nonresponse of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Glaun requested payroll documents for certain members of the Department from January 1, 2016 through December 1, 2018. This request was the subject of a previous appeal. See SPRl 9/0153 Determination of the Supervisor of Records (February 6, 2019). I closed SPR19/0153 by ordering the Department to provide Mr. Glaun with a response to his request, in a manner consistent with the order, the Public Records Law and its Regulations without delay. Subsequently, the Department provided a response to Mr. Glaun. Unsatisfied with the Department's response, Mr. Glaun petitioned with this office and this appeal, SPRl 9/0232 was opened as a result. Exemption (I) In its response, the Department indicates it provided Mr. Glaun with records related to two identified Department members and denied access to the records related to the remaining 13 Department members pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7(26)(f). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Michael Halpin, Esq. SPR19/0232 Page 2 February 20, 2019 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 3 78 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. The Department asserts that "[t]he documents [Mr. Glaun has] requested are the subject of/ connected to an active and ongoing investigation by federal officials." The Department further indicates that "[t]hose officials have confirmed to the Department that disclosure of the records at issue would jeopardize their investigation." The Department's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Order Accordingly, the Department is ordered to provide Mr. Glaun with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Michael Halpin, Esq. SPR19/0232 Page 3 February 20, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dan Glaun