Maya Shaffer v. Middlesex District Attorney's Office (SPR 20192381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 11, 2019 SPR19/2381 Daniel M. DeBlander Assistant District Attorney Middlesex District Attorney's Office 15 Commonwealth Ave Woburn, MA 01801 Dear Attorney DeBlander: 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 rep01i 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 ofa police officer. The :PAO provided responsive records to Ms. Shaffer 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. O. L. c. 66, § 1O A( 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

Daniel M. DeBlander, Esq. SPR19/2381 Page2 December 11, 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. Exemption (/) In her appeal petition, Ms. Shaffer appeals "the overb road use of this investigatory exemption." Specifically, Ms. Shaffer indicates "[t]he DA's office is blanketly citing the investigatory exemption to hold all open police reports exempt." In its November 25th response, the DAO explains "that some of the reports you request from this past year ... concern cases which remain subject of open and ongoing criminal investigations and proceedings." The DAO cites Exemption (f) for withholding these police reports. 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.

Daniel M. DeBlander, Esq. SPR19/2381 Page 3 December 11, 2019 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, § 1O (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 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 ofrecords, 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 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). Order Accordingly, the DAO is ordered to provide Ms. Shaffer with a response, including which records it is 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. Sincerely, ~ - , ~ Supervisor of Records cc: Maya Shaffer