Allison Jarmanning v. Middlesex District Attorney's Office (SPR 20212342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2342 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex County District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Middlesex District Attorney’s Office (DAO) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2021, Ms. Jarmanning requested 911 calls for police assistance and any police incident reports for identified individuals prior to May 30, 2019. The DAO provided a response July 7, 2021. Unsatisfied with the July 7th response, Ms. Jarmanning petitioned this office and this appeal, SPR21/2342, 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

Daniel M. DeBlander, Esq. SPR21/2342 Page 2 September 27, 2021 The DAO’s July 7th response In its July 7, 2021 response, the DAO provided a letter stating the records “are the subject of an open and ongoing criminal case and are exempt from disclosure pursuant to exemption (f) (investigatory) of the Public Records Law. G. L. c. 4, § 7(26). As the agency prosecuting this matter we have an ethical obligation to refrain from making extrajudicial statements that have a substantial likelihood of materially prejudicing the proceedings or of heightening public condemnation of the accused. See Massachusetts Rules of Professional Conduct 3.6, 3.8(f)(2). Disclosure of information or materials from the Commonwealth’s investigatory file may also impede a potential defendant’s right to select a jury that is untainted by undue pre-trial publicity.” 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. 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., 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.

Daniel M. DeBlander, Esq. SPR21/2342 Page 3 September 27, 2021 To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, based on the DAO’s July 7th response, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). The DAO must clarify this. Conclusion Accordingly, the DAO is ordered to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Allison Jarmanning Daniel M. DeBlander, Esq.