Philip A. Bongiorno, Esq. v. Berkshire District Attorney's Office (SPR 20190589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2019 SPR19/589 Jeanne M. Kempthorne, Esq. Assistant District Attorney Berkshire District Attorney's Office 7 North Street, PO Box 1969 Pittsfield, MA O1 202 Dear Attorney Kempthorne: I have received the petition of Philip Bongiorno, Esq. appealing the response of the Berkshire District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 13, 2019 Attorney Bongiorno requested copies of reports related to an identified accident. Attorney Bongiorno appealed, indicating the DAO withheld responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must nofonly cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Appeal In his appeal petition Attorney Bongiorno indicates "[w]e were informed by the DA's office that they would not be releasing the report presumably due to an investigatory exemption; 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

Jeanne M. Kempthorne, Esq. SPR19/589 Page 2 March 28, 2019 however a specific exemption and prejudice was not indicated. Exemption (f) does not, however, create a blanket exemption for all records that investigative officials create or maintain. Records custodian[ s] must demonstrate a prejudice to investigative efforts in order to withhold requested materials." The DAO provided a written response on March 27, 2019 that cites Exemption (f) to withhold responsive records. Exemption (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). 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, 3 78 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. 11 In its March 2i response the DAO indicates "[t]he requested document(s) were necessarily prepared out of the public view as part of a pending law enforcement investigation. The disclosure of the document(s) at this time would prejudice effective law enforcement, and their production would not be in the public interest. Therefore the requested documents are exempt from disclosure pursuant to Massachusetts General Laws c. 4, Section 7(26)(£), and will not be produced at this time." I find the DAO has not met its burden to show how Exemption (f) applies to withhold the responsiVerecotdsinitsentitety; specifically, it is unclear whethetthere is an ongoing investigation, nor is it clear whether the records contain confidential investigative techniques or identifying information of voluntary witnesses. As a result, the DAO has not established how disclosing 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 by Exemption (f). See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide

Jeanne M. Kempthorne, Esq. SPR19/589 Page 3 March 28, 2019 the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In his request Attorney Bongiorno indicates his office represents the executor of the estate of an individual injured in the accident and includes an authorization for the release of medical information. As such, Attorney Bongiorno may also have access to the responsive records by another means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Conclusion Accordingly, the DAO is ordered to provide Attorney Bongiorno with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Philip A. Bongiorno, Esq. Dennis Yusko