Shannon Dooling v. Suffolk County District Attorney's Office (SPR 20220724)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2022 SPR22/0724 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Shannon Dooling, of WBUR, appealing the response of the Suffolk County 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 February 22, 2022, Ms. Dooling requested “[a]ny and all Suffolk County District Attorney records pertaining to the homicide investigation of [a named individual] . . . filed and or dated between January 01, 2020 and the date of receipt of this records request.” The Office provided a response on March 3, 2022 denying access to the responsive records pursuant to Exemptions (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(d), (f). Unsatisfied with the Office’s response, Ms. Dooling petitioned this office and this appeal, SPR22/0724, 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

Claudia Buruca SPR22/0724 Page 2 April 7, 2022 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 3rd response In its March 3, 2022 response, the Office asserts that the records are exempt from disclosure under Exemptions (d) and (f). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). Under Exemption (d), the Office states that “. . . materials concerning ongoing litigation are exempt from production under the public records law under G.L. c. 4, § 7(26)(d). See Lafferty v. Martha’s Vineyard Comm’n, 17 Mass. L. Rep 501 (Mass. Super. Ct. 2004).” 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).

Claudia Buruca SPR22/0724 Page 3 April 7, 2022 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 289-290. Under Exemption (f), the Office asserts, “[t]his investigation remains open. . . . Accordingly, it is this Office’s position that production of the records related to this case is not in the public interest as it could jeopardize an active and ongoing investigation and would contravene any potential defendant’s constitutional right to a fair trial. Since the materials that you are asking for bear directly upon matters to which witnesses may testify, public dissemination of the materials could potentially interfere with any witnesses’ ability to testify based on their actual recollection. Moreover, the potential jury pool could be tainted by publication of details of the incident.” The Office’s response did not contain the specificity required in a denial of access to public records. The Office’s response did not specifically demonstrate how the records withheld under Exemption (d) are inter-agency or intra-agency communications relating to a deliberative process and/or policy making. In addition, the Office has not explained whether any records or portions of the records withheld under Exemption (d) are factual in nature. With respect to Exemption (f), while the Office claims the responsive records pertain to an active and ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Office did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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). In addition, the Office did not identify the records in its possession responsive to Ms. Dooling’s request that it withheld from disclosure under Exemptions (d) and (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 Exemptions (d) and (f).

Claudia Buruca SPR22/0724 Page 4 April 7, 2022 Conclusion Accordingly, the Office is ordered to provide Ms. Dooling 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: Shannon Dooling