Deirdre L. Thurber v. Worcester County District Attorney's Office (SPR 20221018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2022 SPR22/1018 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Deirdre Thurber, Esq. on behalf of her client, Christian Muller, appealing the response of the Worcester 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 January 19, 2022, Mr. Muller requested, “all the materials [and] relative statements taken from Christian Muller on July 9, 2007, including but not limited to written memos, notes, statements, reports, audio and video tapes.” On February 11, 2022, the Office denied records pursuant to Exemption (f) of the Public Records Law. Mr. Muller asked that the Office reconsider on March 4, 2022. The Office again denied responsive records pursuant to Exemption (f) on March 24, 2022. Unsatisfied with the Office’s responses, Attorney Thurber petitioned this office and this appeal, SPR22/1018, 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 town 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

Mark Relation, Esq. SPR22/1018 Page 2 May 12, 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 Department’s February 11th and March 24th Responses In its February 11th and March 24th responses, the Office denied the records pursuant to Exemption (f) of the Public Records Law. 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. 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

Mark Relation, Esq. SPR22/1018 Page 3 May 12, 2022 victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its February 11, 2022 response, the Office stated, “The [Office] is unable to provide the requested documents at this time. The requested documents constitute “investigatory materials” that are exempt from disclosure under the public records law [under Exemption (f)].” On March 4, 2022, Attorney Thurber stated on Mr. Muller’s behalf: The Courts have already ruled that the investigatory exemption is not applicable in situations such as [Mr. Muller’s]. Mr. Muller’s case is over eleven (11) years old, there was no other perpetrator pursued by the police and, since he was convicted and his appeal denied, there is no open, active investigation. Therefore, as the Massachusetts Appeals Court stated in Rafuse v. Stryker, 61 Mass. App. Ct. 595 (2004), these factors, in conjunction with “the corresponding doubt cast on any continuing need for confidentiality” negate the applicability of the exemption. In its March 24, 2022 response, the Office stated, “our position remains that the requested documents constitute ‘investigative materials’ that are exempt from disclosure under the public records law per our February 11, 2022 response.” In her April 28, 2022 appeal, Attorney Thurber stated: Please note that Mr. Muller is requesting a copy of his OWN statement, therefore there is no confidentiality of other witnesses to be protected. Mr. Muller was the sole suspect; he has been prosecuted and convicted; and his conviction has been upheld by the Supreme Judicial Court. In the intervening 16 years since the crime was committed, there has been no indication that the police are pursuing any additional suspects. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein ------------ v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I find it unclear what records exist and how they are exempt under Exemption (f). For example, it is unclear whether the investigation in question is still ongoing. Further, where Exemption (f) applies only to voluntary witnesses and Mr. Muller is only seeking records

Mark Relation, Esq. SPR22/1018 Page 4 May 12, 2022 pertaining his statements to police, it is unclear whether he was a voluntary witness afforded protections under Exemption (f). Also, pursuant to Rafuse, where the investigation happened eleven years ago and the subject of the investigation has been convicted, it is unclear whether Exemption (f) is still applicable. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Attorney Thurber with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Attorney Thurber may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian Muller Mark Relation, Esq.