David Nathanson v. Department of State Police - Office of the Chief Legal Counsel (SPR 20212423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2021 SPR21/2423 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/2083 Supervisor of Records Determination (August 31, 2021). In my August 31st determination, I ordered the Department to clarify the subject of the withheld internal affairs investigation file. Subsequently, the Department responded to Attorney Nathanson on September 20, 2021. 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 or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. SPR21/2423 Page 2 September 30, 2021 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. Current Appeal In his appeal petition, Attorney Nathanson contends that “[t]he simple fact that [the Trooper’s] file relates to the overtime abuse investigation does not insulate it from disclosure.” He goes on to argue that “despite the significant passage of time and charges being levied against others, [the named Trooper] has not been criminally charged in state or federal court . . . and his disciplinary matter is closed.” Finally, Attorney Nathanson argues that “[i]f the investigation against Russell is over, the investigative exemption should not apply. More importantly, the public interest weighs in favor of disclosure.” The Department’s September 20th Response In its September 20, 2021 response, the Department reiterates its claim for withholding responsive records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(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 v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity

Sean W. Farrell, Esq. SPR21/2423 Page 3 September 30, 2021 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. In its September 20th response, under Exemption (f), the Department again cites “an on- going prosecution by the Attorney General’s Office of another case involving Troop E overtime abuse.” The Department goes on to clarify “that the withheld internal affairs file . . . does relate to the Troop E payroll irregularities and overtime abuse investigation.” Where the Department has previously explained that the responsive records are associated with an active and ongoing investigation and prosecution, and has now explained how the requested records relate to the ongoing investigation and prosecution, I find the Department has met its burden to withhold the responsive records, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation or prosecution could impact the applicability of Exemption (f) to these records. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Nathanson 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: David Nathanson, Esq.