Daralyn Heywood v. Massachusetts Department of State Police (SPR 20212116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2116 Daniel Brunelli, Esq. Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Daralyn Heywood 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, Ms. Heywood requested a copy of: “[an identified person’s] audio recorded interview conducted by Col. Kerry Gilpin, #2526 and Captain James Coughlin, #0818 in regards to [an identified person’s case]; and, a copy of the audio recorded interview of [the identified subject], conducted by Col. Kerry Gilpin and Capt. James Coughlin.” On July 7, 2021, the Department denied Ms. Heywood’s request, in its entirety, for the audio recorded interviews pursuant to Exemption (f). Unsatisfied with the response, Ms. Heywood petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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…”); 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 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

Daniel Brunelli, Esq. SPR21/2116 Page 2 September 1, 2021 burden of establishing the applicability of an exemption). 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. Waiver of Fees In her request, Ms. Heywood asks that the Department waive any fees for providing the records. Ms. Heywood is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding.

Daniel Brunelli, Esq. SPR21/2116 Page 3 September 1, 2021 Globe Newspaper Co., 388 Mass. at 438 (emphasis added). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its July 7th response, the Department claims exemption (f) “allows law enforcement to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Citing, Bougas, 371 Mass. at 62. The Department asserts, “the requested audio recorded interviews contain witness statements of [the complainant and the subject of the investigation] and thus are exempt from public disclosure.” In her petition, Ms. Heywood informed this office that the complaint was filed in 2016, and that both the complainant and the subject of the complaint and investigation, by the Department, are both retired from the Department. It is unclear how the subject of the investigation is a voluntary police officer witness. In discussing where redaction of public records may be appropriate to preserve the anonymity of voluntary police officer witnesses, the Court in Antell found the following as reasons for non- disclosure: (1) the complaints made alleging on-the-job misconduct of a police chief triggered the internal affairs investigation; (2) the police officers may continue to be supervised by the police chief; and (3) disclosure may expose the police officers to animus or criticism by their supervisors or colleagues, which could then lead to further discord within the department. Antell, 52 Mass. App. Ct. at 245- 46, 248. Based on the Department’s July 7th response, it is unclear how the police officers witnesses’ statements given during the internal affairs investigation process were voluntary, meriting the protection afforded voluntary witnesses under Exemption (f). Accordingly, given the finding in Antell, the Department has not demonstrated how the police officers were voluntarily witnesses. See also, Reinstein, 378 Mass. at 292. (discussing the voluntary status of police officer and citizen witnesses, concluded that a police officer would be obliged to make an incident report or respond to questions in the course of a firearm investigation, on the pain of otherwise losing his job); Globe Newspaper Co., 419 Mass. at 864 (holding that there was no sufficient basis under the privacy exemption to withhold the identities of police officers interviewed by Internal Affairs Division investigators). Conclusion Accordingly, the Department is ordered to provide Ms. Heywood with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations

Daniel Brunelli, Esq. SPR21/2116 Page 4 September 1, 2021 within 10 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: Daralyn Heywood