Elizabeth Mone v. Massachusetts State Police (SPR 20201781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1781 Jennifer Staples, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Elizabeth Mone, Esq. of Mone Law 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 September 14, 2020, Attorney Mone requested the following information “. . . regarding a motor vehicle stop on Friday, August 21, 2020 at approximately 01:40 hours on Massachusetts Avenue in Boston: 1. The name of every trooper involved in the motor vehicle stop; 2. Any report written by a trooper regarding the motor vehicle stop and subsequent arrest; 3. The Massachusetts State Police Policy on: a. Motor Vehicle Stops; b. Exit Orders from Motor Vehicles; and c. Use of Force and/or Use of Force in Motor Vehicle Stops 4. Any footage from a dashboard camera, body camera, or any other type of surveillance equipment.” The Department responded on September 21, 2020, providing certain records and denying access to portions of the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Attorney Mone petitioned this office and this appeal, SPR20/1781, 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). 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 Staples, Esq. SPR20/1781 Page 2 October 7, 2020 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. 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 September 21st response In its September 21, 2020 response, the Department enclosed copies of its policies responsive to the request. The Department further indicated that it has identified a report and a journal log that it is withholding from disclosure under Exemption (f). The Department explains that “[t]he policy considerations underlying the exemption are well settled. See Bougas v. Chief of Police, 371 Mass. 59, 62 (1976) ‘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’). Here, based on information provided to this office, these records are related to an ongoing prosecution by the Suffolk County District Attorney’s Office. As such, the Department asserts that releasing investigative documents which are the subject of a pending criminal prosecution would not be in the public interest.” In an email correspondence on October 6, 2020, the Department confirmed that this matter is the subject of an active litigation and provided the docket number, 2001CR002236. 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 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

Jennifer Staples, Esq. SPR20/1781 Page 3 October 7, 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. 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 Attorney Mone 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: Elizabeth Mone, Esq.