Judith Pietras, Esq. v. Springfield, City of - Police Department (SPR 20222323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2022 SPR22/2323 Stephen G. Roche, Esq. 2nd Associate City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01105 Dear Attorney Roche: I have received the petition of Attorney Judith Ellen Pietras appealing the response of the Springfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2022, Attorney Pietras requested the following records from 2/6/2007 to 6/18/2021: All documents, including but not limited to police notes, relating to: (1) The October 8, 2003 murder of [a named individual], Hampden Superior Court #0679CR00833; (2) The February 7, 2005 murders of [two named individuals], [Hampden] Superior Court ##S 0579CR00222, 0579CR002233, 0579CR00224 (3) Hampden Superior Court No. 0479CR00344 that includes the name . . . and (4) [Named individual], DOB 5/10/1985, SSN . . . in addition to those produced from request #2[.] Prior Appeal This request was the subject of a previous appeal. See SPR22/2259 Determination of the Supervisor of Records (October 14, 2022). SPR22/2259 was closed after the Department provided a supplemental response on October 6, 2022. Unsatisfied with the response, Attorney Pietras petitioned this office and this appeal, SPR22/2323, 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, § l0A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical 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

Stephen G. Roche, Esq. SPR22/2323 Page 2 October 27, 2022 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 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 Department’s October 6th Response In its October 6, 2022 response, the Department states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law. 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 289-290. Under Exemption (f), the Department argues the following:

Stephen G. Roche, Esq. SPR22/2323 Page 3 October 27, 2022 The City believes that the release of these records would reveal investigative techniques and erode the SPD’s investigative process. The SJC ruled in the Bougas v. Chief of Police of Lexington, 371Mass. 59, 62 (1976) that confidential investigative techniques may be withheld indefinitely under MGL Chapter 4, Section 7(26)(f) if the release of such records “may be prejudicial to future law enforcement activities.” The Captain of the SPD Detective Bureau has stated unequivocally that would be the case if the requested records were released. This information could also be utilized at a later time to compromise future law enforcement activities related to the investigation and prevention of crime. The integrity of the investigative process is vital. More importantly, the SPD does not control access to homicide records. The Hampden County District Attorney controls access to any information about a case involving a death. Based on the Department’s response, it is unclear the records the Department possesses that are responsive to the request. The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). 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). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify what type of record(s) it has in its possession that it withheld. Further, it is uncertain how the records can be withheld in their entirety. The Department has not demonstrated how 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. See Reinstein, 378 Mass. at 289-90 (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). The Department must explain how segregable portions cannot be provided. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Pietras with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Stephen G. Roche, Esq. SPR22/2323 Page 4 October 27, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Judith Ellen Pietras, Esq.