Joseph R. Smith v. Massachusetts State Police (SPR 20200208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2020 SPR20/0208 Keith A. Paquette, Esq. Legal Counsel Department of State Police 470 Worcester Road Framingham, MA O1 702 Dear Attorney Paquette: I have received the petition of Joseph R. Smith, Esq. appealing the response of the Depaiiment of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On December 16, 2019, Attorney Smith requested records regarding an identified Department Trooper, from 2009 to the present, specifically: 1. The nature of any charges against the [identified Trooper] in any ongoing Internal Affairs investigations; 2. The results of any completed Internal Affairs investigation involving this [identified Trooper], including interviews, reports, conclusions and recommendations; and 3. Any and all complaints filed or received by civilians, co-workers and/or superiors against this trooper. In a January 16, 2020 response, you indicate, " ... the Department has located one case, IA case #2018-0l 10/IAS2018-0048, responsive to [Attorney Smith's] request. This matter remains the subject of an on-going investigation and disclosing the materials at this time would prejudice the possibility of effective law enforcement and would not be in the public interest. As such, the Depaitment denies [Attorney Smith's] request pursuant to [Exemption (f)]." As a result of the denial, Attorney Smith petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Tlte 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 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 A. Paquette, Esq. SPR20/0208 Page 2 February 14, 2020 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 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 (I) 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 material 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 on-going 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. Although the Depaiiment claims that the requested records pertain to an on-going Internal Affairs investigation of the identified Department Trooper, it is unclear how disclosure of the nature of the charges (Request No. 1) ; and any copies of complaints filed by civilians, co workers and/or superiors (Request No. 3) will "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records, in their entirety, under Exemption (f). The Department did not demonstrate how disclosure even in a redacted format would compromise or negatively impact any on-going investigation.

Keith A. Paquette, Esq. SPR20/0208 Page 3 February 14, 2020 Burden of specificity; duty to segregate The Depaiiment denied Attorney Smith's request without supporting the withholding of all the responsive 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, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did 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. In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Depaiiment withheld responsive records without identifying each of the records. Therefore, the Depaiiment must identify how many and what type ofrecord(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Depaiiment is ordered to provide Attorney Smith with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Joseph R. Smith, Esq.