Genevieve DiNatale v. Worcester County District Attorney's Office (SPR 20221710)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2022 SPR22/1710 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office Worcester Trial Court 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Genevieve DiNatale, of News Link Live, appealing the response of the Worcester County 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 June 23, 2022, Ms. DiNatale requested the following records: A copy of the arrest report and personnel narratives for all responding officers pertaining to the June 3 arrest of [an identified person and identified property locations] and charged with Firearm, Carry without a License, Firearm Discharge within 500 feet of Building, Firearm with FID Card, Possess, Ammunition without FID Card Possess, Firearm in Vehicle Leave; and A copy of the arrest report and all the personnel narratives for the officers involved in the arrest of [an identified person at identified property locations] who were arrested on May 10, 2022 [at an identified property location] for License Suspended OP MV/Revoked, Unregistered Motor Vehicle, Uninsured Motor Vehicle, Possession of Large Capacity Magazine, No Inspection/Sticker. On July 6, 2022, the Office provided Ms. DiNatale with a response, denying her request in its entirety pursuant to Exemption (f) of the Public Records Law. As a result, Ms. DiNatale petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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. SPR22/1710 Page 2 August 2, 2022 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) (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…”); 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). Exemption (f) The Office withheld the records in their entirety under Exemption (f) due to pending investigations on both the identified persons’ cases. The Office indicates that once the investigations are closed, the Office will review the records related to Ms. DiNatale’s requests and fulfill the requests to the extent possible under the Public Records Law. 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 289-290. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):

Mark Relation, Esq. SPR22/1710 Page 3 August 2, 2022  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Whether an investigation is ongoing and active bears some weight on whether the investigatory exemption will apply. Where an investigation remains open, the courts will look to the effect disclosure of the investigatory materials will have on the ability of law enforcement to effectively prosecute a case. The Office is advised, a showing that the requested records are “investigatory materials” relating to an ongoing investigation is not enough; the Office must also demonstrate that disclosure of the records, even in a redacted format, would likely be so prejudicial to effective law enforcement that disclosure would not be in the public interest. Therefore, based on the Office’s July 6th response, I find that the Office has not met its burden of specificity to show that the records may be withheld in their entirety under Exemption (f). The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Office must provide a response to satisfy its burden of specificity in claiming Exemption (f) to withhold the records. Conclusion Accordingly, the Office is ordered to provide Ms. DiNatale with a response to the requests 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. Ms. DiNatale may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Mark Relation, Esq. SPR22/1710 Page 4 August 2, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Genevieve DiNatale