Anastasia E. Lennon v. Department of State Police - Office of the Chief Legal Counsel (SPR 20220858)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2022 SPR22/0858 Allison Mondello Records Access Officer Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Anastasia Lennon, of New Bedford Light, 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 March 21, 2021, Ms. Lennon requested: Any and all records related to the May 1, 2021 car crash and subsequent driver’s license suspension of [an identified individual] . . . of New Bedford, Mass., as well as any and all records related to MSP’s investigation of the crash and the New Bedford Police Department’s handling of it. Records may include reports, written documents, audio and/or video. The date range for this request is from May 1, 2021 to the date this request is processed. The Department provided a response on April 12, 2022 denying access to the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Ms. Lennon petitioned this office and this appeal, SPR22/0858, 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). 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 SPR22/0858 Page 2 April 27, 2022 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 Department’s April 12th response In its April 12, 2022 response, the Department explains that it “. . . has been informed by the Bristol County District Attorney’s Office that the relevant records related to this matter are subject to an open criminal investigation by the Bristol DA’s office. As a result, the Department is denying your public records request at this time pursuant to M.G.L.c. 4, §7, Twenty-sixth (f). . . . The exemption recognizes that the ‘disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation and not in support of the public interest. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61-62 (1976). This clause allows investigative officials to withhold materials that could compromise investigative efforts if disclosed.” The Department posits, “[w]ith respect to the records subject to this current request, the Department would assert that they are critically related to the open criminal case. The records contain witness information and witness statements related to the incident in question. They also contain a detailed analysis and opinion of cause of the motor vehicle crash in question as well as radio transmissions. The widespread dissemination of such material and witness information prior to the close of the open matter could have harmful effect on the ability to have fair and impartial investigation as well as a chilling effect on the willingness of witnesses to come forward and speak with law enforcement officials.” 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

Allison Mondello SPR22/0858 Page 3 April 27, 2022 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 camera inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Department to withhold the responsive records from disclosure, the Department must provide this office with an un-redacted copy of the responsive records for an in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Allison Mondello SPR22/0858 Page 4 April 27, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Lennon