Jenn Bussell v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201271)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1271 Jennifer M. Staples, Esq. Records Access Officer Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Jenn Bussell 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). Specifically, on June 9, 2019, Ms. Bussell requested: • “Reports and affidavits filed by MA State Police investigative officer(s) assigned to the case • Crime scene photos taken by MA State Police at [an identified address], including the interior and exterior of the home and surrounding property (e.g. front and rear walk-ways, driveway, sidewalk, front yard, rear yard, side yards) • Transcripts of witness interviews conducted by MA State Police with PII (personally identifiable information) redacted per MA law.” Previous appeals This request was the subject of a previous appeal. See SPR20/1114 Determination of the Supervisor of Records (July 17, 2020). Unsatisfied with the response, Ms. Bussell appealed and SPR20/1271 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 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

Jennifer M. Staples, Esq. SPR20/1271 Page 2 August 10, 2020 order to withhold a requested record. G. L. c. 66, § 10(d)(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 July 29th response The Department responded on July 29th and denied the request pursuant to Exemption (f) of the Public Records Law. 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, 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction.

Jennifer M. Staples, Esq. SPR20/1271 Page 3 August 10, 2020 Under Exemption (f), the Department states “the Middlesex County District Attorney’s Office (MCDAO) and State Police Detective Unit (DU) … are investigating this case. The MCDAO has represented to [the] Department that the investigation into this homicide is an on- going and active investigation.” The Department’s July 29th response did not provide supporting information on how the all of the records fall under Exemption (f) in their entirety. It remains unclear what responsive records the Department possesses. The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Bussell’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 2.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). It is additionally uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Further, it is unclear why the Department cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. Burden of specificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be on the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(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). Where possible, the Department must produce any non-exempt segregable portions of the records. G. L. c. 66, § 10(a). As a result, I find that the Department did not satisfy its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Ms. Bussell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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: Jenn Bussell