Jenn Bussell v. Middlesex District Attorney's Office (SPR 20201274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2020 SPR20/1274 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Jenn Bussell appealing the response of the Middlesex 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 May 11, 2020, Ms. Bussell requested the following records: “[1] Retraining orders filed by both [named individuals] between 2000-2002 [2] Transcript of August 1989 911 call and the subsequent report filed by Winchester Police who were dispatched to a [specific address] for a ‘dispute’ [[3] Police and EMS report for the September 23, 2000 hit & run of [a named individual] in Winchester Center [4] Transcript of 911 call on October 2, 2002 to which Winchester Police were dispatched to a [specific address] and the subsequent report that was filed outlined the details of the murder scene [5] Copy [of] a letter sent by the Winchester Police Department to a [named individual] requesting that he turn in his cache of guns … kept at [a specific address] residence [6] Copy of [named individual] MA gun license and registration with WPD [7] List of cleared suspects [8] Witness interviews [9] Crime scene photos [10] Court paper detailed the 2001-2002 divorce of [named individuals] released by the MA State Appeals Court by a [named] Judge [11] 2002 deposition of [named individual] [12] Affidavits provided by a [named detective] (retired from the Winchester Police Department) [13] A court petition filed on or around 01 October 2002 by a [named individual’s] divorce attorney seeking a $200K payment of her legal fees by [a named individual] 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 M. DeBlander, Esq. SPR20/1274 Page 2 August 11, 2020 [14] Copy of a letter faxed to the Winchester Police Department from [a named individual] on 03 October 2002 [15] a petition sent to former Middlesex DA Martha Coakley requesting the [named individual] case be more highly prioritized.” Previous appeal This request was the subject of a previous appeal. See SPR20/0850 Determination of the Supervisor of Records (June 9, 2020). Unsatisfied with the response, Ms. Bussell appealed and SPR20/1274 was opened as a result. It is my understanding that Ms. Bussell is appealing the response to request numbers 8, 9 and 12. 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(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 Office’s July 16th response The Office responded on July 16th and claimed records responsive to request numbers 8, 9 and 12 are exempt in accordance with 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

Daniel M. DeBlander, Esq. SPR20/1274 Page 3 August 11, 2020 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. In its July 16th response, the Office stated, “[a]s this is an open investigation, release of witness names, information or interviews would needlessly interfere with privacy necessary to maximize witnesses’ and victims’ willingness to cooperate by answering questions critical to the investigation.” The Office opined, “[d]isclosure of … crime scene evidence … is presumptively prejudicial to effective law enforcement and prosecution. The witness interview and crime scene photographs … request[ed] concern an open and active criminal investigation and constitute evidence which is barred from disclosure under exemption (f) of the Public Records Law …” The Office also asserted, “… [there] is one affidavit by [a named] Lt. Detective concerning this matter, namely an affidavit in support of a search warrant [and] concerns an open and active criminal investigation and is barred from disclosure under exemption (f)…” The Office’s July 16th response did not provide supporting information on how all of the records fall under Exemption (f) in their entirety. It remains unclear what responsive records the Office possesses. The Office 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 Office cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248.

Daniel M. DeBlander, Esq. SPR20/1274 Page 4 August 11, 2020 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 Office 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 Office must produce any non-exempt segregable portions of the records. G. L. c. 66, § 10(a). As a result, I find that the Office did not satisfy its burden in responding to this records request. Order Accordingly, the Office is ordered to review the request and provide a response to Ms. Bussell made in accordance with the Public Records Law, its Access Regulations and this order 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