Robert Aldrich v. Department of State Police - Office of the Chief Legal Counsel (SPR 20202185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2185 Jennifer M. Staples, Esq. Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Robert Aldrich appealing the response of the Massachusetts 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, Mr. Aldrich requested a particular arrest report, identified as number 2020-0H8-002144. Previous Appeal This request has been the subject of previous appeals. See SPR20/1835 Determination of the Supervisor of Records (October 13, 2020); SPR20/0987 Determination of the Supervisor of Records (July 6, 2020). In my October 13th determination, I found the Department had not met its burden to withhold responsive records pursuant to the Exemption (f). Claiming to have not received the requested report, in a letter dated November 4, 2020 Mr. Aldrich petitioned this office and this appeal, SPR20/2185, was opened as a result. Subsequent to the opening of this appeal, on November 19, 2020, the Department provided a response containing additional explanation regarding its Exemption (f) claim. 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. 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. SPR20/2185 Page 2 November 24, 2020 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. Current Appeal In its November 19th response, the Department indicates that it is withholding the requested arrest report pursuant to Exemption (f) of the Public Records Law. 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 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. In its July 23rd response, the Department states that “[t]his matter is the subject of a pending criminal prosecution by the Middlesex County District Attorney's Office. In light of the active prosecution, the investigative documents you seek are not subject to public disclosure pursuant to G.L. c. 4, §7, cl. 26 (f).” In its November 19th response, Department “asserts that providing these materials to you would prematurely disclose to the public, the Commonwealth’s case prior to trial, which would prejudice the possibility of effective law enforcement.” The Department additionally notes that “until the time the case is resolved, an investigation remains on-going.” The Department explains that the requested report “is an investigatory material because it documents the Departments course of an investigation into an alleged criminal offense that

Jennifer Staples, Esq. SPR20/2185 Page 3 November 24, 2020 occurred in Weston on April 21, 2020.” The Department additionally explains that this document “includes the Department’s response, conversations with witnesses, and observations at the scene and of the victim. This document was compiled within the Department and out of public view.” Based on the Department’s responses, I find it has met its burden to show how Exemption (f) applies to the requested report. I therefore find the Department may permissibly withhold the requested report at this time. Please be aware that a change in the status of the investigation or litigation could impact the applicability of Exemption (f) to this record. Conclusion Accordingly, whereas I find the Department may permissibly withhold the requested report, I will consider this administrative appeal closed. If Mr. Aldrich is not satisfied with the result 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: Robert Aldrich