Joseph R. Smith v. Massachusetts State Police (SPR 20200666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2020 SPR20/0666 Keith A. Paquette, Esq. Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Joseph R. Smith, Esq. appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; 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. Prior appeal The requested records were the subject of a prior appeal. See SPR20/0208 Determination of the Supervisor of Records (Supervisor) (February 14, 2020). Your January 16, 2020 response indicates, “…the Department has located one case, IA case #2018-0110/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 Department denies [Attorney Smith’s] request pursuant to [Exemption (f)].” As a result of the denial, Attorney Smith petitioned the Supervisor, and the prior appeal was opened. In my February 14th determination, I found that it was 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 had not demonstrated how disclosure would compromise or negatively impact any on-going investigation. 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. SPR20/0666 Page 2 April 30, 2020 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). 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) (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). The Department’s February 26, 2020 response – current appeal In its February 26th response, the Department indicates that, currently, the Department has no records responsive to Attorney Smith’s request for “the results of any completed Internal Affairs investigation involving the identified Trooper, including interviews, reports, conclusions and recommendations.” See Attorney Smith’s Request Number 2. You explained that the Department has not conducted any interviews, and no report has been generated by the Department’s Internal Affairs section. Further, you explained that the complainant has a pending Superior Court case in Suffolk County. Specifically, you state, “[a]s such, the Department monitors the criminal case until it is disposed of. Once the criminal case is disposed of the Department conducts interview of witnesses and complete its investigation.” Attorney Smith is advised, under the Public Records Law, the Department is not required to create any record in response to a public records request. Further, the Public Records Law does not require a custodian to honor a prospective request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Exemption (f) Also, in its February 26th response, the Department indicates it is withholding four records in its possession, responsive to Attorney Smith’s Requests 1 and 3, pursuant to

Keith A. Paquette, Esq. SPR20/0666 Page 3 April 30, 2020 Exemption (f). Specifically, the Department is withholding: 1. The “Citizens’ Response Form” which contains the citizen’s complaint and an email from the complainant’s attorney to the Department on behalf of his client, that includes the citizen’s complaint; 2. The Department’s To/From letter to an involved witness identifying the name of the complainant, the allegations of the complaint, the location and dates of the incident, and the parties’ rights in the matter; and 3. IA Investigator Lt. Brian Canavan’s notes that detail the investigation progress. The notes include the allegations of the complaint. 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. The Department posits that disclosure of the investigatory materials prior to the conclusion of the Internal Affairs investigation could harm the Department’s investigative efforts and would discourage individuals and members of the Department involved with the investigation from coming forward and speaking freely with the investigators pertaining to this particular complaint. The Department indicates that it is cognizant of the public’s interest in assuring that members of the Department are properly investigating a civilian complaint against an identified Trooper. However, you state, “[t]he public cannot make this determination until all the facts and circumstances have been developed by investigators including obtaining evidence and interviewing all involved witnesses.” The Department concludes, “…this investigation is still on-

Keith A. Paquette, Esq. SPR20/0666 Page 4 April 30, 2020 going and once it is completed members of the public will be able to request the investigatory materials to determine if the completed investigation was conducted properly.” It is the Department’s contention that the records cannot be redacted because redaction will defeat the purpose of the materials being investigatory. The Department also asserts that disclosure of the complaint from an individual facing a pending criminal case, and the email from the complainant’s attorney could lead to identification of the complainant. The Department also contends that disclosure of the “To/From Letter” could expose the identity of the witness, and disclosure of Lt. Canavan’s notes could lead to identification of the complainant and the investigation itself. Finally, the Department claims that any non-exempt portions of the requested records are inextricably intertwined with exempt portions and that the anonymity of the complainant and witness/witnesses cannot be preserved. Based on the Department’s February 26th response that the Department’s Internal Affairs investigation is active and on-going, the related criminal case remains pending, and disclosure of the records prior to the conclusion of the investigation could jeopardize the Department’s efforts in investigating the complaint, I find that the Department has met its burden to withhold the records under Exemption (f). Please be aware, a change in the status of the investigation could affect the application of Exemption (f). Accordingly, I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph R. Smith, Esq.