Stefanie Grindle v. Suffolk County District Attorney's Office (SPR 20220902)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 29, 2022 SPR22/0902 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 Stefanie Grindle 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 April 8, 2022, Ms. Grindle requested “any and all dates on which there was a Grand Jury sitting in Suffolk County between January 1, 2007 and December 31, 2010.” On April 14, 2022, the Office provided a response denying access to the responsive records pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Office’s response, Ms. Grindle petitioned this office and this appeal, SPR22/0902, 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 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 SPR22/0902 Page 2 April 29, 2022 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 April 14th response In its April 14, 2022 response, the Office states “[d]ue to the nature of Grand Jury secrecy, this Office denies all records in relation to the operation of Grand Jury proceedings. See G.L. c. 4, § 7 (26)(a), (f); Mass. R. Crim. P. 5(d); G.L.c. 268, § 13D; Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 225 (1979); WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 601-02 (1990); In re a Grand Jury Investigation, 485 Mass. 641 (2020). Although you do not reference any specific proceeding, confirming or denying the sitting itself would go against the secrecy of the Grand Jury . . .” The Office cites case law to support its position. 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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. G. L. c. 268, § 13D(a) states in relevant part: Distributing transcript or description of grand jury testimony with intent to interfere with criminal proceedings Whoever knowingly distributes or possesses with intent to distribute any

Claudia Buruca SPR22/0902 Page 3 April 29, 2022 transcript of grand jury testimony or any substantially verbatim description of grand jury testimony with the intent to impede, obstruct, delay or otherwise interfere with any criminal proceeding, or the participation of any victim, witness or juror in any stage of a trial, grand jury, or other criminal proceeding, or the continued participation of any person furnishing information to a criminal proceeding, or the continued participation of any person furnishing information to a criminal investigator relating to a violation of any criminal statue, shall be punished by imprisonment in a house of correction for not more than 21/2 years or in the state prison for not more than 5 years, or by a fine of not more than $5,000, or both. Nothing in this subsection shall abridge any right protected by the First Amendment to the United States Constitution. G. L. c. 268, § 13D(a). Based on the Office’s response, it is unclear how the above referenced statute permits the Office to withhold the requested information from disclosure. Particularly, it is uncertain how the dates of each grand jury sitting within the specified timeframe, constitute grand jury testimony as contemplated in the statute. The Office must clarify this matter. 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. 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. It appears the Office claims that Exemption (f) applies to withhold the requested information from disclosure. However, the Office’s response merely cites Exemption (f) without

Claudia Buruca SPR22/0902 Page 4 April 29, 2022 any further explanation as to how the requested records are exempt from disclosure. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Conclusion Accordingly, the Office is ordered to provide Ms. Grindle 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: Stefanie Grindle