Craig P. Shibley v. Worcester County District Attorney's Office (SPR 20220302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2022 SPR22/0302 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received a petition from Craig Shibley appealing the response of the Office of the Worcester District Attorney (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2022, Mr. Shibley requested certain transcripts related to an identified case. Previous appeal This request was the subject of a previous appeal. See SPR22/0294 Determination of the Supervisor of Records (February 8, 2022). The Office responded on February 7, 2022. Unsatisfied with the Office’s response, Mr. Shibley petitioned this office and this appeal, SPR22/0302, 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. 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

Mark Relation, Esq. SPR22/0302 Page 2 February 22, 2022 The Office’s February 7th response In its February 7th response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records. 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. In its response, the Office stated that the records “… constitute ‘investigatory materials’ that are exempt from disclosure under the public records law. G .L. c. 4 § 7(26)(f). This request was the subject of an appeal filed with the Supervisor of Public Records, SPR 17/057, which was later referred to the Office of the Attorney General. On November 2, 2017, the Office of the Attorney General upheld our denial of your request, finding that by withholding ‘all interview transcripts’ aside from the Lacaire report our office had complied with its obligations under the Public Records Law. As your present request calls for transcripts covered by the November 2, 2017 ruling of the Office of the Attorney General, and there has been no change of circumstances in the open and ongoing investigation that would cause Exemption (f) of the Public Records Law to no longer apply, we are unable to satisfy your request.” The Office’s response did not provide supporting information on how the investigative process is ongoing. It is uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Based upon the above, the Office must clarify its response.

Mark Relation, Esq. SPR22/0302 Page 3 February 22, 2022 Order Accordingly, the Office is ordered to provide Mr. Shibley 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: Craig Shibley