Colman Herman v. Plymouth County District Attorney's Office (SPR 20221647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2022 SPR22/1647 Jennifer Cipolletti, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Cipolletti: I have received the petition of Colman Herman appealing the response of the Plymouth 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 May 18, 2022, Mr. Herman requested a copy of a police report concerning “…an automobile accident on Rt. 3 South in Hingham.” Previous appeal This request was the subject of a previous appeal. See SPR22/1310 Determination of the Supervisor of Records (June 21, 2022). The Office responded on June 14, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/1647, 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. 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 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

Jennifer Cipolletti, Esq. SPR22/1647 Page 2 August 1, 2022 or redacted portion of the responsive record. The Office’s July 14th response In its July 14, 2022 response, the Office advised that the requested records are exempt pursuant to Exemptions (a) and (f) of the Public Records Law. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its July 14th response, the Office opined, “… this matter is under investigation, there is always a possibility that it may be before a grand jury. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court. Mass. R. Crim. P. 5 (d). Grand Jury materials are exempt from the definition of public records. G.L. c. 4, § 7, cl. 26 (a). G.L. c. 268 §13 D (e).” The statute states in pertinent part as follows: Any grand jury transcript or document citing or describing grand jury testimony filed with any court shall be filed and maintained under seal, unless the paper is filed in a criminal prosecution for perjury before a grand jury. G. L. c. 268 §13 D (e).

Jennifer Cipolletti, Esq. SPR22/1647 Page 3 August 1, 2022 Based on the Office’s response, it is unclear as to how all the requested records are restricted under G. L. 268 §13 D (e) as it operates through Exemption (a). 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. In its response, the Office states, “[t]here is an active and ongoing investigation into the fatal crash on May 18, 2022 by Massachusetts State Police and Hingham Police. As you are aware, therefore, all police reports are exempt to public record, pending the outcome of that investigation.” The Office’s response did not provide supporting information on how the investigative process is ongoing. It is additionally uncertain how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request 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 this response to this office at pre@sec.state.ma.us.

Jennifer Cipolletti, Esq. SPR22/1647 Page 4 August 1, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman