Laura Crimaldi v. Norfolk County District Attorney's Office (SPR 20212518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2021 SPR21/2518 Meagen K. Monahan, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Monahan: I have received the petition of Laura Crimaldi, of the Boston Globe, appealing the response of the Norfolk County District Attorney’s Office (Office/NDAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 6, 2021, Ms. Crimaldi requested a “copy of the records concerning the investigation into the death of [an identified individual] in Canton on Feb. 4, 2021.” Previous appeal This request was the subject of a previous appeal. See SPR21/2185 Determination of the Supervisor of Records (September 10, 2021). I closed SPR21/2185 after this office learned that the Office intended to provide a supplemental response. Subsequently, the Office provided a response on September 24, 2021. Unsatisfied with the Office’s response, Ms. Crimaldi petitioned this office and this appeal, SPR21/2518, 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 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

Meagen K. Monahan, Esq. SPR21/2518 Page 2 October 14, 2021 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. The Office’s September 24th response In its September 24, 2021 response, the Office explains that at the conclusion of its investigation, it “. . . provided Stoughton Police Department copies of its investigative materials related to the death of the [named individual]. These materials are relevant to Stoughton Police Department’s internal affairs police investigation and Stoughton Police Department Chief Donna McNamara has informed the NDAO that the release of these investigative materials would jeopardize Stoughton Police Department’s active and ongoing internal investigation. The concerns stated to the Supervisor of Records during its previous in camera review (SPR21/1139) where the NDAO explained why the disclosure of these investigative materials – and even the identification of the materials in the NDAO’s possession - would jeopardize both the NDAO’s and Stoughton Police Department’s investigations remain relevant and applicable as of this date.” The Office further explains that “. . . while the NDAO’s investigation has since concluded, the materials remain subject to G.L. c. 4, § 7 (26) (f) because the disclosure of said materials would so prejudice the Stoughton Police Department’s investigation that disclosure of said materials is not presently in the public interest. See Continental Assurance Co. v. Diorio Volungis, 51 Mass. App. Ct. 403, 411-413 (2001); WBZTV 4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990).” The Office also states that it “. . . cannot at this time confirm the records in its possession because such confirmation could reveal the focus of Stoughton Police Department’s internal investigation and alert certain individuals to the information in investigative officials’ possession. The Office cites Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). 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

Meagen K. Monahan, Esq. SPR21/2518 Page 3 October 14, 2021 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. 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 289-90. Based on the Office’s response, I find it has not met its burden of specificity to withhold responsive records from disclosure under Exemption (f) of the Public Records Law. The Department did not demonstrate how disclosure of any segregable portion of the records would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest, as required under (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Ms. Crimaldi 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: Laura Crimaldi