Craig P. Shibley v. Office of the District Attorney - Worcester District (SPR 20200704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0704 Lindsay Corcoran Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Craig Shibley appealing the response of the Worcester County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 14, 2020, Mr. Shibley requested the following records related to the homicide case of Trooper Alje Savela: “i. A copy of Sgt. George Roche’s ‘report’ as referenced in Det. Lacaire’s investigative report as well as other related reports produced by the Ballistics Bureau; ii. A copy of Dr. John Nickley’s autopsy report.” The Office provided a response on April 28, 2020, denying access to responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Office’s response, Mr. Shibley petitioned this office and this appeal, SPR20/0704, 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). 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 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 SPR20/0704 Page 2 May 13, 2020 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)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s April 28th response In its April 28, 2020 response, the Office asserts that the requested records are exempt under Exemptions (c) and (f). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause of Exemption (c) – medical Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 388 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Under Exemption (c), the Office asserts that the autopsy report “. . . constitutes ‘medical files’ that are exempt from disclosure . . . as noted when you previously requested it in December 2015 and when you requested a reconsideration in February 2016.” Exemption (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

Lindsay Corcoran SPR20/0704 Page 3 May 13, 2020 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, 378 Mass. at 290 n.18. 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. Under Exemption (f), the Office asserts that “[t]he ballistics reports you seek constitute ‘investigatory materials’ that are exempt from disclosure under the public records law. G. L. c. 4, § 7(26) (f). This exemption applies even to cases where persons have not been charged with crimes.” Citing Bougas, the Office states that “[t]he exemption serves many salutary purposes including, ‘the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.’ Bougas, 371 Mass. at 62.” The Office further states that “[t]his request again seeks records from an active, unresolved murder investigation involving the death of a Massachusetts State Police Trooper. There is no statute of limitations in this case and matters such as this are of the highest possible public interest.” The Office references a 2017 Letter (Letter) from the Attorney General’s Office (AGO) regarding this matter. In that Letter, the Office states that the AGO found that it had complied with its obligations under the Public Records Law to withhold records under Exemption (f), pertaining to Mr. Shibley’s 2015 public records request. The Office asserts that although the Letter indicated that it may be required to disclose records should circumstances change, “[t]he investigation has not concluded and no individual has been convicted since the 2017 decision by the Attorney General’s Office.” The Office indicates that in November 2019, it submitted records for in camera review that demonstrated the ongoing nature of the case. The subject matter and the issues raised in Mr. Shibley’s appeal, as well as the Office’s response regarding the ongoing nature of the case, are similar to those addressed in SPR19/2115 Determinations of the Supervisor of Records (October 29, 2019; December 4, 2019; January 21, 2020) and other related appeals. Please note that on February 5, 2020, I referred this matter to the Office of the Attorney General (AGO) for enforcement. In light of this referral sent to the AGO, I decline to provide a determination as to the public status of the requested records at this time

Lindsay Corcoran SPR20/0704 Page 4 May 13, 2020 pending a resolution to the AGO’s review. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Shibley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley