David Nathanson v. Massachusetts Department of State Police (SPR 20212083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2083 Sean W. Farrell, Esq. Office of the Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Attorney David Nathanson 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 June 11, 2021, Attorney Nathanson requested “copies of all internal affairs or misconduct complaints against [a named Trooper] . . . includ[ing] copies of the complaints . . . the results of any investigation into those complaints, and any decision regarding those complaints.” The Department responded on July 2, 2021, citing Exemption (f) for withholding responsive records. Unsatisfied with the Department’s response, Attorney Nathanson 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 agency 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 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

Sean W. Farrell, Esq. SPR21/2083 Page 2 August 31, 2021 custodian must provide the responsive records. Current Appeal In his appeal petition, Attorney Nathanson states that “[the named Trooper] is one of the state troopers alleged to have falsely claimed overtime for time they did not work.” He contends that “[d]espite the significant passage of time and charges being levied against others, [the named Trooper] has not been criminally charged in state or federal court as far as [Attorney Nathanson] can tell, and his disciplinary matter is closed.” He further argues that “[i]f the investigation against [the named Trooper] is over, the investigative exemption should not apply. More importantly, the public interest weighs in favor of disclosure. As the SJC has said, the public interest in public records is at its apex when dealing with allegations of official corruption. This is that.” The Department’s July 2nd Response In its July 2, 2021 response, the Department claims to withhold one responsive internal affairs file 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, 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. Under Exemption (f), the Department argues the following:

Sean W. Farrell, Esq. SPR21/2083 Page 3 August 31, 2021 [T]he Attorney General’s Office has been actively involved in investigating and prosecuting MA State Police Troop E members accused of time submission and overtime abuse, and is currently actively prosecuting at least one case associated with the Troop E overtime investigations. That case is currently scheduled for trial in January of 2022. After consultation with the Attorney General’s Office, the Department denies [Attorney Nathanson’s] request for the subject file (Case Number: 2018-0214) due to the pendency of that criminal case. Specifically, the public disclosure of any files associated with the Troop E investigations would, at this point, expose investigative techniques, would prematurely disclose the government’s evidence before trial, and publicly reveal investigative methodologies used in all these investigations. The public disclosure would show the evidentiary roadmap to the public at large. . . . Since the public release of the subject file which is associated with the Troop E investigation would be prejudicial to the government’s case and would expose the file to public scrutiny prior to a criminal trial, its disclosure would “operate in derogation” of the public interest. Under the Public Records Law, the burden shall be upon the 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 Department’s response did not contain the specificity required in a denial of access to public records. The Department states that the responsive records are associated with an active and ongoing investigation and prosecution, but it does not clearly explain the subject of the internal affairs investigation nor does it describe how the requested records are part of the ongoing prosecution. Specifically, it is not clear whether the subject of the withheld internal affairs investigation file relates to overtime abuse, or whether it relates to some other matter not at issue in the investigation. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Attorney Nathanson with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Nathanson, Esq.