Adam Bradley v. Department of State Police - Crime Lab (SPR 20191107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 14, 2019 SPR19/1107 Darina Griffin, Esq. Legal Counsel Massachusetts State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received a petition from Adam Bradley appealing the response of the Massachusetts Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Originally, Mr. Bradley requested copies of reports authored by Massachusetts State Police Troopers; copies of color photographs, documents, reports relative to (1-5) blue examination latex rubber gloves; all copies of listed Crime Scene Services Section Reports; and documents that were either reset, edited, corrected or deleted by the Department. The Department provided Mr. Bradley with a response on May 10, 2019, citing Exemption (f) for the withholding of records. Mr. Bradley appealed the Department's May 101 h response to this office. 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 not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § IO(b )(iv). 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

Darina Griffin, Esq. SPR19/1107 Page 2 June 14, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (/) 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, 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, 378 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 Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass.

Darina Griffin, Esq. SPR19/1107 Page 3 June 14, 2019 at 62; cited with approval in Reinstein, 378 Mass. at 289. In Mr. Bradley's May 31, 2019 appeal he states the Department must "redact what exemptions apply and disclose all reports and documents" pertaining to his request. In the Department's May 10th response, they explain that citing Exemption (f) was due to a "criminal case that is at the heart of [Mr. Bradley's] request" and has "multiple named co defendants." Mr. Bradley is named as one for the defendants along with a co-defendant which was not named. The Department states "there are three cases still pending and awaiting trial." Also, the Department explains that "[w]here [Mr. Bradley's] co-defendants cases remain pending, and [Mr. Bradley's] case has the potential of a retrial, disclosure of information is not in the public interest. Specifically, the disclosure of information from the Commonwealth's investigatory file could have several negative ramifications." Further, the Department asserts "[w]here three additional defendants are still awaiting trial, and [Mr. Bradley's] case has further potential of a re-trial once all of [Mr. Bradley's] appellate remedies are exhausted, there is a substantial potential prejudice to law enforcement efforts to fully investigate and prosecute the ongoing cases if these materials are disclosed." Whereas the Department has indicated that the names and other identifying details of voluntary witnesses were withheld, I find the Department may permissibly withhold those portions from disclosure. See Antell, 52 Mass. App. Ct. at 248 ( discussing the appropriateness of redacting the identities of voluntary witnesses). Further, it is unclear what additional responsive records the Department is withholding. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). Specifically, the Department is reminded that in accordance with the Public Records Law, to deny access to a record, a records access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the type of record(s) it has in its possession. It is additionally uncertain why the Department is withholding responsive records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). The Department must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. I find the Department has not met its burden to withhold the requested records under Exemption (f) in its entirety. Unique right of access In its May 1o th response, the Department asserts that they withheld records indicating that the "Crime Lab does not number reports as requested." The Department further explains that "it has become evident that along with the records discussed in the preceding section, [Mr. Bradley has] a unique right of access to this fourth category of records as well through pre-trial discovery

Darina Griffin, Esq. SPR19/1107 Page 4 June 14, 2019 and potentially post-conviction discovery." This office encourages the parties to communicate further to enable the Department to provide responsive records. Conclusion Accordingly, the Department is ordered to review the request and provide a response to Mr. Bradley, made in accordance with the Public Records Law, its Access Regulations and this order within ten 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: Adam Bradley