Craig P. Shibley v. Office of the District Attorney - Worcester District (SPR 20192115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 29, 2019 SPR19/2115 Lindsay Corcoran Records Access Officer Office of the District Attorney - Worcester County 225 Main St., G301 Worcester, MA O1 608 Dear Ms. Corcoran: I have received the petition of Craig Shibley appealing the response of the Office of the District Attorney-Worcester County (DAO/Office) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, in his September 26, 2019 request Mr. Shibley referenced a Boston Globe article in which a spokeswoman from the DAO indicated in May 2018 that" ... the state was conducting forensic testing related to Trooper Alje Savela's cold case - currently 68 years old." Mr. Shibley indicates "I'm seeking copies of the following[:] i. The request submitted by this Office to the entity(s) which performed the specific test(s); ii. Any related electronic or written communications specific [to] the DAO's request; iii. The results authored by the testing entity(s)." Previous appeals and referral to the Office of the Attorney General This request is related to the subject of previous appeals and a referral to the Office of the Attorney General (AGO). See SPRl 7/020 Determination of the Supervisor of Records (January 4, 2017); SPRl 7/027 Detennination of the Supervisor of Records (January 12, 2017); SPRl 7/057 Detennination of the Supervisor of Records (January 23, 2017). The AGO issued a letter regarding this matter on November 2, 2017. In this letter the AGO determined that the DAO complied with its obligations under the Public Records Law. However, the AGO also noted that" ... should circumstances in the investigation change, you may be required to disclose records currently withheld under Exemption (f): For example, if the investigation concludes or an individual is convicted for a crime as a result of the investigation, Exemption (f) may no longer apply to withhold ce1iain responsive records." Current appeal In response to Mr. Shibley's September 26th request the DAO cites Exemption (f) of the 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

Lindsay Corcoran SPR19/2115 Page 2 October 29, 2019 Public Records Law to deny access to responsive records. G. L. c. 4, §7 (26)(f). 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, 37 1 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 its October 10th response the DAO asserts "[t]his office is unable to comply with your request. The DNA testing requests, any correspondence and the subsequent results would constitute 'investigatory materials' that are exempt from disclosure under the public record law. G.L. c. 4, § 7(26) (f)." You further.indicate that "[t]his request seeks records from an active, unresolved murder investigation involving the death of a Massachusetts State Police Trooper. There is no statute of limitations in this case and matters such as this are of the highest possible public interest." The DAO contends "[t]his request specifically seeks infonnation related to testing that is part of the ongoing active investigation of this case. The release of details listed in any request or communication and certainly tbe results should not be made public as they could jeopardize that investigation. In Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976), the court recognized the importance of protecting such limited class of material in order to protect the public's interest in effective law enforcement and prosecution." In camera inspection In order to analyze the legal basis of the DAO's current position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the

Lindsay Corcoran SPR19/2115 Page 3 October 29, 2019 responsive records would facilitate a determination as to the applicability of any exemption claims made by the DAO. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to yourcustody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[ o ]n doubtful questions an in camera inspection may be appropriate"). These records should, for example, demonstrate the extent to which the investigation remains active. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose ofreview. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). · This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any .other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. This office will coordinate with the DAO to obtain unredacted copies of a representative sample of responsive records for in camera inspection without delay. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. · Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley