Laura Crimaldi v. Suffolk County District Attorney's Office (SPR 20212125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2125 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2021, Ms. Crimaldi requested “police reports and witness interviews concerning the deaths of [two named individuals].” Previous Appeal This request was the subject of a previous appeal. See SPR21/1758 Supervisor of Records Determination (July 27, 2021). In my July 27th determination, I ordered the Office to identify the records in its possession responsive to the request, and to explain how segregable portions of the records could not be provided. The Office responded on July 29, 2021. Unsatisfied with the Office’s response, Ms. Crimaldi 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 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

Claudia Buruca SPR21/2125 Page 2 September 1, 2021 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 her appeal petition, Ms. Crimaldi contends that the Office’s “[r]esponse fails to show how disclosure of the requested records ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.’” She further argues that the Office “fails to explain how or why the release would be detrimental or not in the public interest. This broad assertion that because an investigation has not yet been concluded, the records cannot be released, fails to meet the [Office]’s burden of specificity.” The Office’s July 29th Response In its July 29, 2021 response, the Office elaborates on its previous claim that it is withholding responsive records 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. 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

Claudia Buruca SPR21/2125 Page 3 September 1, 2021 would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. 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 law enforcement agencies 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. Under Exemption (f), the Office argues the following: [T]his investigation is active and is currently waiting on the Office of the Chief Medical Examiner’s report. No determination will be final regarding the investigation until that report is received. Thus, this investigation, in which the police report and the witness interviews are directly relevant to the on-going investigation, continues to remain open. The premature release of the police report and witness interviews, even in a redacted form, prior to any final determination would be so determinantal [sic] to our Office’s criminal investigation to the incident, the entire investigation could be compromised. It is [the] Office view that release of these documents at this time is not in the public’s interest. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Office to withhold responsive records, the Office must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in

Claudia Buruca SPR21/2125 Page 4 September 1, 2021 camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi