Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20221956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2022 SPR22/1956 Valerie Connolly Records Access Officer Office of the Secretary of the Commonwealth One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Colman Herman appealing the response of the Office of the Secretary of the Commonwealth (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2022, Mr. Herman requested a copy of a letter sent to the Office from the Plymouth County District Attorney’s Office dated August 4, 2022. The Office responded on August 23, 2022, providing a copy of the letter in redacted form, and citing Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Office’s response, Mr. Herman 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

Valerie Connolly SPR22/1956 Page 2 September 8, 2022 Current Appeal In his appeal petition, Mr. Herman contends that the “claim of exemption (f) ... lacks the specificity required by the law. Instead, it merely restates what the law says.” Additionally, he asks that the Office “provide [him] with the specificity required by the law to properly claim an exemption.” The Office’s August 23rd Response In its August 23, 2022 response, the Office cites Exemption (f) for redacting a portion of the responsive letter which was marked “confidential” by the Plymouth County District Attorney’s Office. 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 Office argues that “the redacted portions pertain to information related to an ongoing investigation. Disclosing the information at this time would be detrimental to the ongoing investigation, such that any information relating to the investigation could potentially alert suspects or targets to the activities of investigative officials.” The responsive August 4th letter itself includes the following explanation concerning the applicability of Exemption (f) to the redacted portions: [T]here is an active and ongoing investigation into the fatal crash on May 18,

Valerie Connolly SPR22/1956 Page 3 September 8, 2022 2022 by the Massachusetts State Police and the Hingham Police Department. During such investigations, the suspect, in this case the driver of the vehicle that caused the fatal collision, may not be aware that they are the subject of a criminal investigation. The dissemination of documents or information relating to the incident and compiled by law enforcement out of the public view provides the suspect with the ability to tailor their version of events to fit the information under the custody and control of law enforcement. The suspect may respond by attempting to cover up evidence that law enforcement is actively attempting to legally obtain, or by speaking to witnesses that law enforcement has not yet been able to contact. These actions define the meaning of compromising investigative efforts by law enforcement – therefore undermining the stated reason this exemption exists. In light of the Office’s August 23rd response, and the information provided in the August 4th letter explaining the active and ongoing investigation, I find that the Office has met its burden to properly redact the responsive record pursuant to Exemption (f). See G. L. c. 4, § 7(26)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman