Craig P. Shibley v. Department of State Police - Office of the Chief Legal Counsel (SPR 20220570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2022 SPR22/0570 Allison Mondello Primary RAO Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received a petition from Craig Shibley appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 4, 2022, Mr. Shibley requested the following records relating to an identified file: i. A copy of [identified] Tpr. … Case Initiation Report (CIR) uploaded on June 6, 2013; ii. A screenshot of all entries in the Reports field from 2013 - present; iii. A screenshot of all entries in the Tips/Tasks field from 2013 - present; iv. A copy of the Administrative Log Note (2021-1311124) on 6/23/21; v. A copy of the two (2) "updates", or edits, to the CIR on 11/24/14 AND 11/12/20 as well as the authorizing person; vi. The authorizing person who printed a copy of the CIR on 4/26/21; vii. A screenshot of all entries under Case Activity from 2013-present. Previous appeal This request was the subject of a previous appeal. See SPR22/0425 Determination of the Supervisor of Records (March 8, 2022). The Department responded on March 8, 2022. Unsatisfied with the response, Mr. Shibley petitioned this office and this appeal, SPR22/0570, 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 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

Allison Mondello SPR22/0570 Page 2 March 22, 2022 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. The Department’s March 8th response In the Department’s March 8th response, the Department 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. 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 Department stated that with regard to the requested records, “the Department has identified… records potentially to your request. After consultation with the Worcester County District Attorney’s Office the Department denies your request as the record sought contains details relating to an ongoing investigation and as result the record is not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f).”

Allison Mondello SPR22/0570 Page 3 March 22, 2022 The Department’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 Department must clarify its response. Order Accordingly, the Department 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 Joshua D. Reilly, Esq.