Maya Shaffer v. Plymouth County District Attorney's Office (SPR 20192364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records December 9, 2019 SPR19/2364 Keith Garland, Esq. Assistant District Attorney Plymouth District Attorney's Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Maya Shaffer appealing the response of the Plymouth 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, 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 over 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 a fees estimate for responsive documents to Ms. Shaffer's request and 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, § 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). 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

Keith Garland, Esq. SPR19/2364 Page 2 December 9, 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, § 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. If there.are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10(d )(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, agencies may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Tlte DAO's November S'" Response In its November 8, 2019 response, the DAO indicates they ha.ve "located 29 closed cases and 25 open cases. In regard to closed cases, I estimate it will take 1.5 hours for each case, to retrieve the file, copy the report, and redact as necessary." The DAO provided a fee for 43.5 hours at $25 per hour, for a total of $1,087.50. After reviewing the DAO's November 8111 response, the response was insufficient to explain the basis of the 43.5 hours assessed to "retrieve the file, copy the report, and redact as

Keith Garland, Esq. SPR19/2364 Page 3 December 9, 2019 necessary." Specifically, it is unclear how much time is needed to search for the records, copy, . and redact ,the responsive records. It is also unclear if the DAO is charging for the first four hours to respond~o the request. See G. L. c. 66, § IO(d)(ii). The DAO also has not indicated whether the hourly rate used is that of the lowest paid individual capable of performing these tasks. See G. L. c. 66, § 10( d)(iii). Further, it does not appear the DAO submitted a petition to assess fees for the time to segregate and/or redact responsive records. Although the DAO cites Exemption (f) and ( d), it must explain how potential redactions are required by law. See G. L. c. 66, § 10(d )(ii) ( a fee shall not be assessed for time spent segregating or redacting records unless such segregation or . · redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv)); 950 C.M.R. 32.06(4)(g). Please note that 950 C.M.R. 32.06(4)(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records." For the reasons discussed above, I find the DAO must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, §IO(d). Exemption (I) Further, the DAO indicates "[i]n regard to the open cases, your request is denied ... [a]ny records associated with criminal investigations are exempt from the definition of public records, as investigatory materials. 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)(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

Keith Garland, Esq. SPR19/2364 Page 4 December 9, 2019 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Exemption (d ) The DAO also asserts "[i]n regards to any communications, your request is denied based on work product. All prosecutorial notes, case law and media research contained in the trial file constitute work product prepared and compiled in anticipation of litigation, demonstrating the prosecutors thought process ... are exempted from disclosure under the Public Records Law. G.L. c. 4, §7 (26)(d) ... " Exemption ( d) allows the withholding of: inter-agency or intra"'agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual repo1is which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Burden ofs pecificity 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, § lO(b )(iv) (written response must "identify any records, categories of records or pmiions 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 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) and Exemption (d). The DAO must clarify which responsive records it possesses. In regard to the Exemption (:f) claim, while the DAO claims the responsive records pe1iain to an ongoing investigation, it does not explain the subject of the investigation nor does it

Keith Garland, Esq. SPR19/2364 Page 5 December 9, 2019 describe how the requested records are part of the investigation. Fmiher, the DAO 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). With respect to the Exemption (d ) claim, although the DAO states the communications requested are. work product, the response does not identify records responsive to the request or how their disclosure would taint the deliberative process. Order Accordingly, the DAO is ordered to provide Ms. Shaffer with a response to the request 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. Sincerely, ~~ Supervisor of Records cc: Maya Shaffer