Kyle G. Christensen v. Berkshire District Attorney's Office (SPR 20221118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 16, 2022 SPR22/1118 Richard Dohoney, Esq. Deputy District Attorney Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Dohoney: I have received the petition of Kyle Christensen, Esq. of Donovan O’Connor & Dodig, LLP appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2022, Attorney Christensen requested copies of, “police reports, civil motor vehicle crash reports, witness statements, log notes, recorded 911 calls, turret tapes, scene photograph or videography, and any citations issued as a result of the [Pittsfield Police Department’s] response” relating to “damages sustained in a motor vehicle collision . . . in the City of Pittsfield on June 7, 2021.” Previous Appeal This request was the subject of a previous appeal. See SPR22/0976 Determination of the Supervisor of Records (May 10, 2022). In the previous appeal, this Division ordered the Office to provide Mr. Christensen with a response to his request. The Office provided a response on May 10, 2022. Unsatisfied with the Office’s response, Attorney Christensen petitioned this office and this appeal, SPR22/1118, 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 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

Richard Dohoney, Esq. SPR22/1118 Page 2 May 16, 2022 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 Office’s May 10th response In its May 10, 2022 response, the Office cites Exemption (f) to withhold the requested records. 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, 371 Mass at 62. 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 its response, the Office asserted that, The records you seek are related to an open investigation the disclosure of which materials would probably so prejudice the possibility of effective law enforcement and disclosure would not be in the public interest. Current Appeal In his appeal, Attorney Christensen argues that,

Richard Dohoney, Esq. SPR22/1118 Page 3 May 16, 2022 The Office’s response, merely asserting Exemption (f), fails to provide the specific reasons for such withholding, as required by G.L. c. 66, § 10(b)(iv). Furthermore, even if the Office can establish that some portion of the records are permissibly withheld, the response fails to explain why redactions fail to protect the investigatory interests. 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). The Office’s response did not contain the specificity required in a denial of access to public records. The Office did not identify the records in its possession that it intends to withhold from disclosure. Further, the Office cites Exemption (f) without sufficient explanation of the applicability of the exemption to the responsive records. It is unclear how the requested records constitute investigatory materials. Although the Office states that there is an ongoing investigation, it is unclear how the release of the records would compromise the ongoing investigation or “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). It is additionally uncertain why the Office cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Attorney Christensen 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.

Richard Dohoney, Esq. SPR22/1118 Page 4 May 16, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kyle G. Christensen, Esq., Donovan O’Connor & Dodig, LLP