Sarah Robertson v. Department of State Police - Legal Office (SPR 20201521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1521 Keith Paquette, Esq. Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Sarah Robertson of the Montague Reporter 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, 2020, Ms. Robertson requested police logs, incident reports and related documentation concerning a certain incident. The Department provided a response on June 30, 2020, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Ms. Robertson petitioned this office and this appeal, SPR20/1521, 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 or redacted portion of the responsive record. 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 Paquette, Esq. SPR20/1521 Page 2 September 14, 2020 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 Department’s June 30th response In its June 30, 2020 response, the Department indicates that it identified the following responsive records: “1. Incident Report #2020-0B2-003452[;] 2. Administrative Journal Extract #2020-0B2-003452 . . .[;] 3. Administrative Journal Extract #2020-0B2-003429 . . .[;] 4. Administrative Journal Extract #2020-0B2-003647 . . .[;] 5. Massachusetts State Police Air wing-Mission Report[;] 6. Massachusetts State Police Bureau of Tactical Operations Air Wing Unit, Daily Administrative Journal for Thursday, June 04, 2020 . . .[;] 7. Massachusetts State Police Stop Team Operator Reports [and] 8. Case Report #2020-109-148, which has not been completed.” The Department states that it is denying access to the responsive records under Exemption (f) “. . . as this matter remains the subject of an active on-going prosecution.” Citing the language of Exemption (f), the Department explains that “[t]he policy considerations of the investigatory exemption are well settled. They include the ‘avoidance of premature disclosure of the Commonwealth’s case prior to trial, 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.’ See, Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).” Further, the Department indicates that “[a]n identifiable person has been arraigned in the Greenfield District Court in relation to all the above referenced records. The case is currently pending and is being prosecuted by the Northwestern District Attorney’s Office. The Department asserts that providing these materials . . . would prematurely disclose the Commonwealth’s case prior to trial, which would prejudice the possibility of effective law enforcement. It is not in the public’s interest to release this information, as such release could potentially taint any potential jury pool. Therefore, the records . . . are not available at this time pursuant to G.L. c. 4, §7, cl. 26 (f).” In an email correspondence on September 11, 2020, the Department provided the docket number, 2041CR000482. 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 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.

Keith Paquette, Esq. SPR20/1521 Page 3 September 14, 2020 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 289-290. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, it is my determination that the requested records at issue in this appeal are the subject of dispute in active litigation. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b)(1). Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Robertson 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: Sarah Robertson