Brendan Noonan v. Massachusetts State Police (SPR 20212287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2287 Sean W. Farrell, Esq. Office of the Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA O 17 0 2 Dear Attorney Farrell: I have received the petition of Attorney Patrick Noonan 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 July 9, 2021, Attorney Noonan requested “the names and contact information of two civilians who submitted written complaints against [a named] Trooper.” The Department responded on August 4, 2021, noting that it had previously provided “the investigatory internal files related to these two cases, but redacted the names of the complainants within each case pursuant to G.L. c. 4, §7, cl. 26 (f).” The Department reiterated that it was continuing to withhold the names of the complainants pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the Department’s response, Attorney Noonan 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 or municipality 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

Sean W. Farrell, Esq. SPR21/2287 Page 2 September 16, 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. The Department’s August 4th Response In its August 4, 2021 response, the Department states that it “redacted the names of the complainants within each case 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. Att’y 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979); Bougas, 371 Mass. 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. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. Where the Department states that it redacted the names and identifying information of civilian complainants, I find the Department may properly claim Exemption (f) in withholding

Sean W. Farrell, Esq. SPR21/2287 Page 3 September 16, 2021 the identities and identifying information of the complainants and voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Noonan is not satisfied with the resolution 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Noonan, Esq.