Diana Palacios v. Middlesex District Attorney's Office (SPR 20220592)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2022 SPR22/0592 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, Esq., 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 . . .[.] Previous appeal This request was the subject of a previous appeal. See SPR22/0214 Determination of the 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. SPR22/0592 Page 2 March 25, 2022 Supervisor of Records (February 14, 2022). In my February 14th determination, I found the Office had not met its burden to withhold responsive records, in their entirety, under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). The Office provided a further response on March 2, 2022. Unsatisfied with the Office’s response, Attorney Palacios petitioned this office and this appeal, SPR22/0592, 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 March 2nd response In its March 2, 2022 response, the Office reiterates that the records are exempt from disclosure under Exemption (f). 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

Daniel DeBlander, Esq. SPR22/0592 Page 3 March 25, 2022 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. The Office contends that “[d]isclosure of the identities of the personnel involved in an investigation can prejudice a criminal investigation in numerous ways. First, as a general matter, revealing the nature and extent of investigatory resources devoted to an investigation reveals important information concerning the nature, priority, and status of an investigation. This has the potential to assist suspect(s) by either alerting them of likely imminent action or, conversely, reassuring that an investigation is not likely to culminate soon. Further, the disclosure of the identities of specific investigating officers or prosecutors may prejudice law enforcement investigations by unduly revealing the specific resources that the Office is devoting to the investigation, the areas of expertise that are involved, the geographical area of focus, and clues as to investigators’ current theory of the case. Such a disclosure would further require us to identify undercover officers involved in the investigation. As such, revealing this information would prejudice the investigation and impede the effectiveness of law enforcement in future investigations and is thus exempt from disclosure.” The Office further asserts, “. . . disclosure of records or information by our office, regardless of whether that information may be available elsewhere, would prejudice the investigation by confirming the contents of our investigatory file. Even though certain information or records may be publicly available from other sources and it may be presumed that investigators are aware of publicly-available information, witnesses or suspects cannot know with certainty whether such information is in fact contained within our investigatory files. Disclosure of any information about the contents of our investigatory files, even information that may be publicly available elsewhere, could therefore impede an effective investigation by apprising suspect(s) of the scope and nature of information known to law enforcement.” The Office posits, “. . . statements made to law enforcement, including the contents of the undisclosed 911 call, may not be disclosed during the pendency of the investigation because doing so would ‘probably so prejudice the possibility of effective law enforcement,’ under exemption (f), by ‘chill[ing] future communications between law enforcement and citizens.’. . .” Despite the Office’s response, I find it has not met its burden to withhold the responsive records, in their entirety, under Exemption (f) of the Public Records Law. It is unclear how producing segregable portions of the records, or names of personnel involved in the investigation, “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

Daniel DeBlander, Esq. SPR22/0592 Page 4 March 25, 2022 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). 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 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Diana Palacios, Esq.