Daralyn Heywood v. Massachusetts Department of State Police (SPR 20212971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2021 SPR21/2971 Sean Farrell, Esq. Deputy Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Daralyn Heywood 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). Specifically, Ms. Heywood requested a copy of the audio recording witness interview of an identified individual by two Department employees related to Case #2015-004. On July 7, 2021, the Department denied Ms. Heywood’s request, in its entirety, for the audio recorded interviews pursuant to Exemption (f). Prior appeal The requested record was the subject of a prior appeal. Unsatisfied with the response, Ms. Heywood petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR21/2116, was opened. See SPR21/2116 Determination of the Supervisor of Records (Supervisor) (September 1, 2021). In my September 1, 2021 determination, I found that the Department did not meet its burden under Exemption (f) to withhold the witness interview of a police officer, and in asserting that the officer was a voluntary witness. I ordered the Department to provide Ms. Heywood with a response. In its September 20th response, the Department again asserted that Exemption (f) applies to withhold the audio recorded interview in its entirety due to the subject of the audio recorded interview being a voluntary witness. See G. L. c. 4, § 7(26)(f). As a result, Ms. Heywood petitioned the Supervisor, and the current appeal was opened. 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 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 Farrell, Esq. SPR21/2971 Page 2 November 17, 2021 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 289-90. Under Exemption (f), the Department’s July 7th response asserts, “that [the identified individual’s] audio recorded interview is exempt from public disclosure as [the identified individual] was a voluntary witness. As such, the Department will not be providing any additional records in response to [the identified individual’s] request.” In my September 1st determination of SPR21/2116, I found that it is unclear how the subject of the investigation is a voluntary police officer witness. In discussing where redaction of public records may be appropriate to preserve the anonymity of voluntary police officer witnesses, the Court in Antell found the following as reasons for non-disclosure: (1) the complaints made alleging on-the-job misconduct of a police chief triggered the internal affairs

Sean Farrell, Esq. SPR21/2971 Page 3 November 17, 2021 investigation; (2) the police officers may continue to be supervised by the police chief; and (3) disclosure may expose the police officers to animus or criticism by their supervisors or colleagues, which could then lead to further discord within the department. Antell, 52 Mass. App. Ct. at 245- 46, 248. Based on the Department’s July 7th response and the Department’s September 20th response, I find that the Department has not met its burden to withhold the record in its entirety. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Department to withhold the record in its entirety, the Department must provide this office with an un-redacted copy of the audio interview recording for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. 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 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 Department is ordered to provide this office with an un-redacted copy of the audio recording without delay.

Sean Farrell, Esq. SPR21/2971 Page 4 November 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Daralyn Heywood