Craig P. Shibley v. Massachusetts State Police (SPR 20221050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 16, 2022 SPR22/1050 Allison Hynes, Esq. Staff Legal Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received the petition of Craig P. Shibley 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 23, 2022, Mr. Shibley requested records relating to the 1951 death of a Massachusetts State Trooper. The Department responded on May 5, 2022, denying the request. Unsatisfied with the Department’s response, Mr. Shibley appealed, and this case 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. Att’y 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

Allison Hynes, Esq. SPR22/1050 Page 2 May 16, 2022 The Department’s May 5th Response In its May 5, 2022 response, the Department states “that the records that [Mr. Shibley] request[s] are in the possession, custody and control of the Worcester County District Attorney’s office” and further states that responsive records are exempt pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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. Under Exemption (f), the Department argues that “to the extent [Mr. Shibley’s] request seeks any responsive records that are solely in the possession of the Department, in consultation with the Worcester County District Attorney’s Office, the Department has determined that these records relate to an ongoing investigation and thus are exempt from public disclosure pursuant to G.L. c. 4, §7, cl. 26 (f).” The Department goes on to argue that “here, the release of the responsive records would negatively impact this investigation and thus are exempt from disclosure.” Based on the Department’s response, it is unclear how the records may be withheld in their entirety pursuant to Exemption (f). The Department has not demonstrated how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Department must explain whether segregable portions of the responsive

Allison Hynes, Esq. SPR22/1050 Page 3 May 16, 2022 records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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). Possession, Custody, or Control Please be advised, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its response, the Department states that “all reports, memos, and other documentation related to the work performed by the SPDU is kept in office space maintained by the district attorney.” Additionally, the Department argues the following: Given the operational function that SPDU members perform for the district attorneys as described above, the records that may be responsive to [the] public records request are in the possession, custody, and control of the Worcester County District Attorney’s office, and to the extent that these records were created by SPDU members, the members created them only as agents of the Worcester County District Attorney. Based on the Department’s response, it is unclear what responsive records are in the possession, custody, or control of the Department. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Shibley with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig P. Shibley