Craig P. Shibley v. Massachusetts Department of State Police (SPR 20222507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2022 SPR22/2507 Allison Mondello Primary Records Access Officer Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received a petition from Craig Shibley appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2022, Mr. Shibley requested the following records related to an identified 70-year-old cold case: “[a]ny document that can clearly demonstrate beyond a reasonable doubt the Department is actively pursuing new leads at the present time.” The Department responded on October 11, 2022. Unsatisfied with the response, Mr. Shibley petitioned this office and this appeal, SPR22/2507, 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 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

Allison Mondello SPR22/2507 Page 2 November 18, 2022 The Department’s October 11th Response In its October 11, 2022 response, the Department cited Exemption (f) of the Public Records Law to withhold any records. 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 Department stated, “[a]s communicated to you in previous responses provided by the Department, the Department maintains that the records that you request are in the possession, custody and control of the Worcester County District Attorney’s office. As such, please direct your request and any future requests for such records to the Worcester County District Attorney’s Office.” The Department further advised, “[t]o the extent your request seeks any responsive records that are solely in the possession of the Department, in consultation with the Worcester County District Attorney’s Office, the Department has determined that these records relate to an ongoing investigation and thus are exempt from public disclosure pursuant to G.L. c. 4, §7, cl. 26 (f).” While the Department references consultation with the Worcester District Attorney’s Office, the Department’s response did not provide supporting information on how the investigative process is currently ongoing. It is uncertain how disclosure “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). Based upon the above, the Department must clarify its response.

Allison Mondello SPR22/2507 Page 3 November 18, 2022 Order Accordingly, the Department is ordered to provide Mr. Shibley 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, Manza Arthur Supervisor of Records cc: Craig Shibley