Craig P. Shibley v. Worcester County District Attorney's Office (SPR 20220446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2022 SPR22/0446 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main St. 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 requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 13, 2022, Mr. Shibley requested records related to an identified investigative report filed on September 2, 1951 regarding a specific autopsy report and specific ballistic report. Previous appeals This request was the subject of previous appeals. See SPR22/0064 Determination of the Supervisor of Records (January 19, 2022) and SPR22/0195 Determination of the Supervisor of Records (February 9, 2022). The Office responded on February 23, 2022. Unsatisfied with the Office’s response, Mr. Shibley petitioned this office and this appeal, SPR22/0446, 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 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. SPR22/0446 Page 2 March 9, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Office’s February 23rd response In the Office’s February 23rd response, the Office cited Exemptions (a) and (f) of the Public Records Law to withhold the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its February 23rd response, the Office cited, G. L. c. 38, § 2 indicating that the records are exempt from disclosure. G. L. c. 38, § 2 provides in pertinent part: The chief medical examiner, with approval of the secretary of the executive office of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records … G. L. c. 38, § 2 Based upon the Office’s February 23rd response, and as the records are restricted from disclosure in its entirety by the Legislature under G. L. c. 38, § 2, as it operates through Exemption (a), I find the Office has met its burden to withhold the requested autopsy records under the Public Records Law. See G. L. c. 38, § 2.

Mark Relation, Esq. SPR22/0446 Page 3 March 9, 2022 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. Attorney 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 [an identified] … 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.” While the Office references an opinion of the Office of the Attorney General from 2017, the Office’s response did not provide supporting information on how the investigative process is currently 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. Order Accordingly, the Office is ordered to provide Mr. Shibley with a response to the

Mark Relation, Esq. SPR22/0446 Page 4 March 9, 2022 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