Laura Crimaldi v. Norfolk County District Attorney's Office (SPR 20213034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2021 SPR21/3034 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 appeals This request was the subject of previous appeals. See SPR21/2185 Determination of the Supervisor of Records (September 10, 2021) and SPR21/2518 Determination of the Supervisor of Records (October 14, 2021). In my October 14th determination, I found the Office had not met its burden to withhold responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Accordingly, the Office was ordered to provide Ms. Crimaldi with a supplemental response. Subsequently, the Office provided a response on October 28, 2021. Unsatisfied with the Office’s response, Ms. Crimaldi petitioned this office and this appeal, SPR21/3034, 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). 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

Meagan K. Monahan, Esq. SPR21/3034 Page 2 December 2, 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. The Office’s October 28th response In its October 28, 2021 response, the Office reiterates 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] as these materials were relevant to Stoughton Police Department’s open and active internal affairs police investigation.” The Office explains that “[o]n October 19, 2021, counsel for Stoughton Police Department confirmed that the internal affairs investigation is active and ongoing; that the department is actively reviewing its investigative materials and it anticipates conducting interviews related to this investigation in December 2021. . . .” The Office contends that “. . . premature release of any portion of these records would so jeopardize Stoughton Police Department’s internal investigation that such disclosure is not in the public interest. Of particular concern, where interviews have not yet occurred, but are anticipated to begin in the near future, disclosure of any records related to this investigation would alert individual subject(s) of the investigation to the activities of investigators and the scope of the investigation. Disclosure of the materials prior to these interviews could also create a chilling effect and dissuade witnesses from coming forward to report misconduct.” The Office cites Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Further, the Office indicates that it “. . . cannot at this time confirm the records in its possession because such confirmation would reveal the focus of Stoughton Police Department’s internal investigation and alert certain individuals to the information in investigative officials’ possession. For the same reasons, the NDAO cannot provide redacted copies of the investigative materials at this time. . . .” 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

Meagan K. Monahan, Esq. SPR21/3034 Page 3 December 2, 2021 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. 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. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims under Exemption (f) to withhold the responsive records from disclosure, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. 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. Massachusetts 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.

Meagan K. Monahan, Esq. SPR21/3034 Page 4 December 2, 2021 Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi