Craig P. Shibley v. Department of State Police (SPR 20221011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2022 SPR22/1011 Allison Mondello Public Records Manager Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Craig Shibley appealing the response of the Massachusetts State Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2022 and March 18, 2022, respectively, Mr. Shibley requested, “a copy of Case Master 2012-115-0065 (closed case)” and numerous categories of records relating to the investigation in Case Master 2012-115-0065. Previous Appeal The records sought by Mr. Shibley were the subject of a previous appeal. See SPR22/0791 Determination of the Supervisor of Records (April 19, 2022); SPR22/0654 Determination of the Supervisor of Records (March 31, 2022). Mr. Shibley appealed after the Department withheld responsive records pursuant to Exemptions (c), (d), and (f) in a response on April 1, 2022. In SPR22/0791, the Department indicated that it would provide a supplemental response and did so on April 28, 2022. Unsatisfied with the substantive nature of the Department’s supplemental response, Mr. Shibley petitioned this office and this appeal, SPR22/1011, 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 SPR22/1011 Page 2 May 12, 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. The Department’s April 1st and April 28th Responses In its April 1, 2022 response, the Department withheld records for certain categories of Mr. Shibley’s request pursuant to Exemptions (c), (d), and (f) of the Public Records Law and indicated that it does not possess responsive records for certain other categories of records. In its April 28, 2022 response, the Department clarified its positions regarding Exemption (c) and (f), respectively. In his current petition, Mr. Shibley appeals the Department withholding records pursuant to Exemptions (c), (d), and (f) of the Public Records Law. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same info1mation is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292.

Allison Mondello SPR22/1011 Page 3 May 12, 2022 Regarding certain MGM and Foxwoods Casino reports, the Department stated: The Department was able to locate…responsive records…The Department is denying your request to the records pursuant to G.L. c. 4, §7, cl. 26 (c), the privacy exemption … The Department asserts that disclosing [the] records…bears upon [a certain individual under investigation’s] reputation as potentially being a gambler. As such, disclosure of this information would cause personal embarrassment to [the individual]. The summary of the information contained in these records is available through the Case Master Report 2012-115-0065 in paragraph 15, that has already been provided to you. The Department is of the position that the public interest in obtaining this information to know whether public servants are carrying out their duties in a law-abiding and efficient manner is significantly diminished as the summary of the records you seek is available in the Case Master Report … Providing the specific gambling losses would not contribute to determining whether public servants are carrying out their duties, rather this would cause more personal embarrassment for [the individual]. Further, in its April 29, 2022 supplemental response, the Department stated, “Both [of the casino reports] contain the subject’s identifying information and summary of wins and losses. Redacting this information pursuant to [Exemption (c)] would result in a record that would be functionally meaningless, as the record documents the subject’s potential gambling activity only. 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.

Allison Mondello SPR22/1011 Page 4 May 12, 2022 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 Envt’l. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Regarding records relating to a forensic audit, the Department stated: The Department is denying your request to the forensic audit report pursuant to G.L. c. 4, §7, cl. 26 (d) that permits the withholding of “inter-agency or intra- agency memoranda or letters…” The Department asserts that the report was prepared by…certified public accountants under the direction of Town of Barre Counsel, the Town of Barre, and the Board of Selectman for the purposes of potential litigation. The report includes the opinions of [the certified public accountants] as it relates to fraudulent activity in the collection of funds by [a certain individual]. 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.

Allison Mondello SPR22/1011 Page 5 May 12, 2022 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. As a matter of course, witness-provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438 (emphasis added). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Regarding certain taxpayer lists and requested spreadsheets, the Department stated it “has provided [Mr. Shibley] with [four responsive spreadsheets]…The Department redacted witness names and identifying information, such as the bill number, to preserve the anonymity of voluntary witnesses and to encourage witnesses from coming forward in the future and speaking freely to police concerning matters under investigation.” Further, in its April 28, 2022 response, the Department stated it “confirmed with the Town of Barre that a bill is publicly available information that can be searched by bill number. The bill would contain the taxpayer’s name. Therefore, releasing the bill number to you would result in you being able to locate the bill and identify the taxpayer.” Regarding the interview and audio transcripts of certain individuals, the Department stated: The Department was able to locate interview recordings for seven individuals. The Department is not naming the specific witnesses, as the Department is denying your request pursuant to G.L. c. 4, §7, cl. 26 (f) … The Department is denying your request to the interviews to preserve the anonymity of voluntary witnesses and to encourage witnesses from coming forward in the future and speaking freely to police concerning matters under investigation. Furthermore, the fact that you named certain individuals in your request that you believe may be involved with the investigation as witnesses,

Allison Mondello SPR22/1011 Page 6 May 12, 2022 supports the reasoning that you are in a unique position to identify the witnesses directly or indirectly in this matter, if provided the interviews … Under the circumstances of this request there would be no way to redact any portion of the interview, without you being able to identify the witnesses indirectly or directly. With respect to the spreadsheets, I find that the Department has met its burden in redacting the names of the voluntary witnesses and the related bill numbers associated with them. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) and (d) claims in their entirety and the Exemption (f) claim with respect to the interview recordings and transcripts specifically, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s 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. Mass. 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.

Allison Mondello SPR22/1011 Page 7 May 12, 2022 Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley