Thomas Jeffreys v. Massachusetts State Police (SPR 20192103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2019 SPR19/2103 Sean W. Farrell, Esq. Office of the Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Thomas Jeffreys appealing the response of the Massachusetts Department of State Police (Department) to his reqnest for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jeffreys requested "any and all investigative reports and/or transcripts, documents, transcribed telephone conversations, motions filed in support of any investigation ... " concerning an identified individual stemming from an incident that occurred on or about August 23, 2010. Previous Appeal The requested records were the subject of a prior appeal based on the Department's non response. See SPR19/964 Determination of the Supervisor of Records (May 20, 2019). I closed SPRl 9/964 by ordering the Department to provide a response to Mr. Jeffreys in accordance with the Public Records Law, its Access Regulations and this order within ten business days. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Sean W. Farrell, Esq. SPR19/2103 Page2 October 29, 2019 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). 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, 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. In their response, the Depaiiment states "this case is currently on-going and is the subject of a criminal appeal which the Bristol County District Attorney's Office is handling." The Department explains "[g]iven the on-going prosecution/appeal, the records you seek are not subject to public disclosure pursuant to G. L. c. 4, sec. 7, cl. 26 (f) which specifically exempts from public disclosure investigatory materials necessarily compiled out of the public view by ... disclosure of which materials would probably so prejudice the possibility of effective law enforcement ... " The Department indicates Mr. Jeffreys should direct his request "to the Bristol County District Attorney's Office." The Department has not met its burden to permit withholding of the record in its entirety under Exemption (f). Specifically, it remains unclear why the Department cannot redact or otherwise alter the records to withhold exempt information. As a result, I find that the Department did not satisfy its burden in responding to this records request. Burden of specificity; duty to segregate records Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did

Sean W. Farrell, Esq. SPR19/2103 Page 3 October 29, 2019 not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). Co11clusio11 . Accordingly, the Depaiiment is ordered to review the request and provide a response to Mr. Jeffreys, 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: Thomas Jeffreys