Diana Palacios v. Middlesex District Attorney's Office (SPR 20220214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0214 Daniel 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 Diana Palacios of Davis Wright Tremaine LLP, on behalf of Susan Zalkind of Story Syndicate, 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 November 29, 2021, Ms. Zalkind requested: All files related to the investigation into the murder occurring at 12 Harding Ave. in September 2011, in which [3 identified individuals] were killed, including but not limited to: [a] Transcript/Audio of the 911 Call on 9/12/11 reporting the incident [b] List of officers working the case [c] Lead officers [d] ADAs assigned to the case [e] Any communication (emails, memos, phone records) regarding this case with federal agencies [f] List of interviews and individuals contacted including dates of interviews [g] Notes and recordings of interviews [h] Departmental records [i] Documents and records pertaining to the deceased . . . [j] Documents and records pertaining to the deceased . . . [k] All emails to and from former District Attorney . . . between September 11, 2007 until his departure from Middlesex DAO containing the following keywords . . .[.] The Office provided a response on January 4, 2022 denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Office’s response, Attorney Palacios petitioned this office and this appeal, SPR22/0214, 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 DeBlander, Esq. SPR22/0214 Page 2 February 14, 2022 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). 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 January 4th response In its January 4, 2022 response, the Office asserts “[w]hile some information in this case is available through federal court filings, our Office’s investigatory file, which includes the records you are requesting, has not been disclosed. As this remains an open and active investigation, this Office will not be providing any additional records at this time.” The Office explains that while two people of interest are deceased, it “. . . continues, however, to investigate the potential involvement of additional undisclosed person or persons in connection with these homicides. In the past year we have interviewed a material witness, and as recently as November, 2021, we have identified new potential sources of physical evidence. The investigatory files contain information relating to tips and other leads that we are pursuing. To subject any portion of such investigative records to public disclosure would, in the terms of the statute, ‘probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest . . .’ G.L.c. 4, §7, Twenty-sixth, exemption (f).” The Office contends that “. . . partial disclosure of even apparently innocuous information from the Commonwealth’s investigatory file could taint the memories of potential witnesses, impair future interviews with potential suspects, cause the destruction or secreting of potential evidence, assist potential suspects by informing them of information known to the Commonwealth, assist suspects by revealing potential leads that investigators may follow, or impede a potential defendant’s right to select a jury that is untainted by undue pre-trial publicity.

Daniel DeBlander, Esq. SPR22/0214 Page 3 February 14, 2022 See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). . . . It is not possible for this Office to say with precision when we will complete the investigation because we are continuing to pursue investigative leads. We owe it to the victims in this case and their families to exhaust all investigative avenues before we make any public disclosure that could impede a possible prosecution in this case.” 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 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. Current appeal In her appeal petition, Attorney Palacios states: First, when the requests are analyzed case-by-case, it is unclear how the investigative exemption would apply to many of the requests. For example, it is unclear how the disclosure of the names of the officers on the case, names of the lead officers, or the names of the ADAs assigned to the case would “prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” . . . Globe Newspaper Co. v. Police Com’r of Bos., 419 Mass. 852, 864, 648 N.E.2d 419, 428 (1995) is instructive. There, the court affirmed the disclosure of police officers’ statements and related materials because “[i]t is not likely that the effect of releasing the officers’ statements would have a chilling effect on potential witnesses and thus ‘so prejudice the possibility of effective law enforcement.’” Globe Newspaper Co. v. Police Com’r of Bos., 419 Mass. 852,

Daniel DeBlander, Esq. SPR22/0214 Page 4 February 14, 2022 864, 648 N.E.2d 419, 428 (1995). Thus, if police officer statements do not prejudice effective law enforcement, nor would releasing the names of the officers or ADAs assigned to the case. Disclosure of these names is particularly important here where the public has questions of whether the officers adequately pursued [named individual] as murder suspect. In light of the above, it is unclear how disclosing the “list of officers working the case,” “lead officers,” and “ADAs assigned to the case,” “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (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). Attorney Palacios further states: Similarly, the investigative exemption should not apply to the 911 call because it is already public known that the landlord, . . . called the police office. See http://archive.boston.com/news/local/massachusetts/articles/2011/09/13/three_kill ed_in_waltham/. Therefore, there is no need to maintain confidentiality. . . Indeed, in a case like this, which has generated considerable negative publicity, such disclosure may help to restore public confidence in a police department which has been highly criticized for its handling of a sensitive case.”) To the extent other 911 calls exist, they should be produced as well because the underlying information is already public. In light of the above, where it appears that certain information is publically available in some form, it is unclear how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Office must clarify these matters. In addition, the Office did not identify the records in its possession responsive to Attorney Palacios’ request that it withheld from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying which records those are. Therefore, the Office must identify what type of record(s) it has in its possession that it withheld under Exemption (f). Conclusion Accordingly, the Office is ordered to provide Attorney Palacios 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

Daniel DeBlander, Esq. SPR22/0214 Page 5 February 14, 2022 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Diana Palacios