Mark W. Shaughnessy v. Massachusetts State Police (SPR 20200746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2020 SPR20/0746 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Mark W. Shaughnessy, Esq. of Boyle Shaughnessy Law, P.C. 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 February 28, 2020, Attorney Shaughnessy requested records pertaining to a January 22, 2020 incident, involving three identified persons in the Town of Braintree, specifically: 1. The logs; run sheets; call recordings, and other documents and materials; 2. All photographs taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident; 3. All reports, citations, notes, memorandum, correspondence, email or other paperwork and/or documents generated or otherwise during, in connection with, and/or as a result of the incident; 4. All evidence taken from the scene relative to the incident; 5. All statements taken from any person associated with the incident; 6. All 911 calls, transcripts and/or tapes generated as a result of, or in connection of the incident; and 7. Any other document, photograph, sketch or other material generated or otherwise obtained during, in connection with, and/or as a result of the incident. Status of the requestor In Attorney Shaughnessy’s petition, he indicates that he seeks the records relating to the legal representation of an identified person and Norfolk Companies. Additionally, Attorney Shaughnessy asserts, “…this matter is pre-suit, the subject accident involved a double fatality and it is anticipated that civil action will be filed in the near future.” Both Attorney Shaughnessy and his client(s) should be aware, their interest in the responsive records and Attorney 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 Brunelli, Esq. SPR20/0746 Page 2 May 18, 2020 Shaughnessy’s status as an attorney representing a client does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Shaughnessy’s status as an attorney representing a client in this matter will play no role in a determination as to whether the records should be disclosed to the public in its entirety. 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 response The Department’s response denied Attorney Shaughnessy’s request in its entirety under Exemption (f) due to an on-going investigation. 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 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

Daniel Brunelli, Esq. SPR20/0746 Page 3 May 18, 2020 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. While the Department claims the responsive records pertain to an active and on-going investigation, the Department 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). Burden of specificity 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, § 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 ...”); see also Globe Newspaper - - - Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find that the Department did not meet its burden of responding to this request. The Department’s response did not contain the specificity required in a denial of access to public records. Conclusion Accordingly, the Department is ordered to provide Attorney Shaughnessy with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. 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, Rebecca S. Murray Supervisor of Records cc: Mark W. Shaughnessy, Esq., Boyle Shaughnessy Law, P.C.