Stephen Stich v. Middlesex District Attorney's Office (SPR 20213227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3227 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Attorney Stephen Stich, on behalf of Sessi Blanchard, appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 21, 2020 and on April 19, 2021, Ms. Blanchard requested numerous categories of records relating to the investigation into the death of a named individual and the subsequent criminal case. Previous Appeal These requests were the subject of a previous appeal. See SPR21/2111 Supervisor of Records Determination (September 1, 2021). In my September 1st determination, I ordered the Office to clarify how the responsive records were among those contemplated by the CORI (Criminal Offender Record Information) statute, and to clarify the exemption under which the Office was withholding grand jury minutes. Subsequently, the Office responded on September 23, 2021. Unsatisfied with the Office’s response, Attorney Stich 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

Daniel M. DeBlander, Esq. SPR21/3227 Page 2 January 6, 2022 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. Att’y 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 December 10, 2021 appeal petition, Attorney Stich first contends that “the CORI statute does not exempt motions filed with the Court” and second, he argues that “the Office has not justified its refusal to disclose grand jury minutes.” In an email to the Middlesex District Attorney’s Office and this office on January 5, 2022, Attorney Stich stated, among other things, the following: Ms. Blanchard [Attorney Stich’s client] withdraws the above-captioned appeal to the extent it appeals the Middlesex County District Attorney’s Office’s withholding of motion papers, but not to the extent it appeals the Office’s withholding of grand jury materials. The partial withdrawal shall be without prejudice to Ms. Blanchard’s filing a new public records request for the same records, or pursuing any resulting administrative appeals or litigation, if she is unable after a good faith effort to obtain them from the clerk’s office. In light of the partial withdrawal, I decline to address the issues related to the withholding of motion papers in this determination letter. If Attorney Stich wishes to submit an additional public records request to the Office in the future, and is unsatisfied with the Office’s response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). The Office’s September 23rd Response In its September 23, 2021 response, the Office states that it is withholding the minutes of grand jury proceedings 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

Daniel M. DeBlander, Esq. SPR21/3227 Page 3 January 6, 2022 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 289-290. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and 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); 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. Under Exemption (f), the Office argues the following: The relevant public policy concerns include “the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, [and] the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation.” [Bougas, 371 Mass. at 62] Additionally, the Office goes on to argue that: Several distinct interests are served by safeguarding the secrecy of the grand jury such as: (i) if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily; (ii) witnesses who appeared before the grand jury would be less likely to testify fully and frankly; . . . [and] (v) persons who are accused but exonerated will not be held up to public ridicule [citations omitted].

Daniel M. DeBlander, Esq. SPR21/3227 Page 4 January 6, 2022 Where the Office has demonstrated that disclosure of the grand jury materials would be prejudicial to future law enforcement activities, I find the Office has met its burden to withhold the responsive grand jury materials pursuant to Exemption (f) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Stich 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: Stephen Stich, Esq.