Antonina Khramova v. Massachusetts Department of State Police (SPR 20211358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2021 SPR21/1358 Jennifer M. Staples, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Antonina Khramova 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). On March 14, 2021, and on three other occasions, Antonina Khramova requested records related to a group of named individuals. The Department responded on April 30, 2021, claiming to withhold responsive records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Antonina Khramova appealed, and this case 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. 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. 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. SPR21/1358 Page 2 June 11, 2021 The Department’s April 30th Response In its April 30, 2021 response, the Department states “that based on information available to [the Department], this incident is the subject of an ongoing investigation. Given that the investigation remains ongoing, the report [Antonina Khramova] seek[s] is not subject to public disclosure pursuant to G.L. c. 4, §7, cl. 26 (f).” 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, 371 Mass at 62. 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. The Department’s response did not contain the specificity required in a denial of access to public records. It is unclear what types of records the Department is withholding under Exemption (f). G. L. c. 66, § 10(b)(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 ”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. ------------------------------- 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must identify the records in its possession that are responsive to this request. Further, the Department states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. In addition, the Department did not provide sufficient supporting information to demonstrate how disclosure of the responsive records would compromise or negatively impact the ongoing investigation or “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”

Jennifer M. Staples, Esq. SPR21/1358 Page 3 June 11, 2021 as required to withhold records under Exemption (f). It is additionally uncertain how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain how segregable portions cannot be provided. Conclusion Accordingly, the Department is ordered to provide Antonina Khramova with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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: Antonina Khramova