Maya Shaffer v. Worcester, City of - Office of the District Attorney (SPR 20192363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records December 5, 2019 SPR19/2363

Lindsay Corcoran

Records Access Officer

Worcester District Attorney’s Office 225 Main Street, G301

Worcester, MA 01608

Dear Ms. Corcoran:

_ [have received the petition of Maya Shaffer appealing the response of the Worcester District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Shaffer requested four categories of records:

1. The last two months of police reports sent to the office that include charges of interference or obstruction of a police officer;

2. The most recent police report that include charges of interference or obstruction of a police officer from each police department that has sent one in the last year;

3. All communications with police departments regarding the charges of either interference or obstructions of a police officer from this year;

4, All current policies/memos/directives about how the office handles charges of either interference or obstruction of a police officer,

The DAO provided responsive documents to Ms. Shaffer’s request, however, claimed some of the responsive records were being withheld under Exemption (f). Unsatisfied with the DAO?’s response, Ms. Shaffer petitioned this office and this appeal was opened as a result.

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, § 10A(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).

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 SPR19/2363 Page 2 December 5, 2019

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, § 10(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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(vili); see also 950 C.M.R. 32.07(2). Once fees are paid, a records © custodian must provide the responsive records.

Exemption (f)

In its November 20, 2019 response, the DAO indicates they were “unable to provide reports from open cases as those records constitute ‘investigatory materials’ that are exempt from disclosure under 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)(£).

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,

Burden of specificity

Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(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 . . .”); see also Globe Newspaper

Lindsay Corcoran ; SPR19/2363 Page 3 December 5, 2019

Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

The DAO’s response did not contain the specificity required in a denial of access to public records. Therefore, the DAO must provide additional information regarding the nature of the responsive records, categories of records, or portions of the records it intends to withhold under Exemption (f).

While the DAO 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 DAO is ordered to provide Ms. Shaffer with a supplemental response, including which records they are in possession of and how Exemption (f) applies to each record, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Qaluscn

Kollecee S. Murray 4

Supervisor of Records

cc: Maya Shaffer