Stefanie Grindle v. Suffolk County District Attorney's Office (SPR 20221313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2022 SPR22/1313 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.” Previous appeal This request was the subject of a previous appeal. See SPR22/0902 Determination of the Supervisor of Records (April 29, 2022). In my April 29th determination, I found the Office had not met its burden to withhold dates of grand jury sittings under Exemptions (a) and/or (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Subsequently, the Office provided a supplemental response on May 11, 2022. Unsatisfied with the Office’s response, Ms. Grindle petitioned this office and this appeal, SPR22/1313, 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. 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 SPR22/1313 Page 2 June 21, 2022 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 Office’s May 11th response In its May 11, 2022 response, the Office asserts “[t]here are no responsive materials regarding your request for Grand Jury sittings, as those records are not maintained beyond Grand Jury minutes. The only way to determine if a Grand Jury was hearing testimony is by manually reviewing all Grand Jury Minutes during this period. It is our Office’s continued stance that Grand Jury minutes are not subject to public records law. 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).” The Office contends, “[e]ven if Grand Jury Minutes were public records, there is no obligation on a record keeper to create a record in response to a public records request, see G.L. c. 66, §6A(d). The date in which Grand Juries are impaneled are governed by statute. M.G.L. c. 277 s. 2, which states:” The clerk of the superior court for criminal business in Suffolk county shall, not less than twenty-eight days before the first Mondays of January and July, respectively, issue writs of venire facias for forty-five veniremen of whom thirty- nine shall be from Boston and two each from Chelsea, Revere and Winthrop. From these forty-five veniremen the court shall then select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for six months and until another grand jury has been impaneled in their stead. Additionally, Suffolk County has a special Grand Jury sitting, that is governed by M.G.L. c. 272 s. 2A, which states: The clerk of the courts in any county, or in Suffolk county the clerk of the superior court for criminal business, shall, upon written request of the attorney general accompanied by a certificate that public necessity requires such action, signed by the chief justice of the superior court, issue writs of venire facias for forty-five veniremen of whom the court shall select twenty-three for service as a special grand jury to hear, consider and report on such matters as the attorney general may present. Said jurors shall serve for a period of six months, unless sooner discharged by the attorney general or by the said chief justice, and shall be drawn, summoned and returned in the same manner, and shall have the same powers and receive the same compensation, as grand jurors summoned for service under sections one and two, and the provisions of sections three to fourteen, so far as apt, shall apply to such jurors. In Middlesex county, the clerk

Claudia Buruca SPR22/1313 Page 3 June 21, 2022 of the courts shall send a letter of venire to the jury commissioner as set forth in section twelve of chapter two hundred and thirty-four A. The Office also asserts that “Grand Juries are further governed by Rule 5 of Mass. Crim. Pro, part (a) which states:” As prescribed by law, the appropriate number of jurors shall be summoned in the manner and at the time required, from among whom the court shall select not more than twenty-three grand jurors to serve in said court as long as and at those specific times required by law, or as required by the court. The regular grand jury shall be called upon and directed to sit by the Chief Justice of the Superior Court Department whenever within his or her discretion the conduct of regular criminal business and timely prosecution within a particular county so dictate. Notwithstanding the foregoing, special grand juries shall be summoned in the manner prescribed by the General Laws. 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. Exemption (f) Exemption (f) permits the withholding of:

Claudia Buruca SPR22/1313 Page 4 June 21, 2022 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. Based on the Office’s response, it remains unclear how the above referenced statutes, as they operate through Exemption (a), as well as Exemption (f), permit 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 that can be withheld from disclosure. Consequently, I find the Office has not met its burden to withhold the requested records from disclosure. The Office must clarify this matter. 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