Laura Carey v. Department of State Police (SPR 20222887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2023 SPR22/2887 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Attorney Laura Carey, of The New England Innocence Project, 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 June 22, 2022, Attorney Carey requested the following: The complete investigative file and all records associated with the murder of [a named individual] on April 28, 1988, including any arrest and booking records, crime and incident reports, incident logs, evidence logs/indexes, audio and video records, photographs, interviews, notes, correspondence, memoranda, supplemental reports, and any and all related records not specifically requested. The Department responded on December 19, 2022, citing Exemptions (a), (c), and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department’s response, Attorney Carey 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). 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 SPR22/2887 Page 2 January 4, 2022 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. Current Appeal In her appeal petition, Attorney Carey argues the following: These exemptions are not applicable to [Attorney Carey’s] request because the records relate to a murder from 1988. [A named individual] was convicted of the murder in 1989, he passed away this year... This particular investigation has been closed for 33 years and both the victim and defendant are deceased. Given the amount of time and death of the parties, there are no plausible investigatory or privacy concerns. The Department’s December 19th Response In its December 19, 2022 response, the Department cites Exemptions (a), (c), and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c), (f). 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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

Allison Mondello SPR22/2887 Page 3 January 4, 2022 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 December 19th response, the Department cites no specific statute that would operate through Exemption (a) to allow withholding the responsive records. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its December 19th response, the Department merely cites Exemption (c) without providing any explanation as to how it would apply to withhold the responsive records, and without providing any information relating to the PETA balancing test discussed above. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Allison Mondello SPR22/2887 Page 4 January 4, 2022 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. Burden of Specificity Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In its December 19th response, the Department states that it “located a responsive record which cannot be released at this time because the incident relating to [Attorney Carey’s] request is the subject of criminal prosecution. Accordingly, the records [Attorney Carey] seek[s] are not subject to public disclosure pursuant to M.G.L. c. 4, §7, cl. 26 (a), M.G.L. c. 4, §7, cl. 26 (c), and M.G.L. c. 4, §7, cl. 26 (f).” In this case, the Department’s response did not contain the specificity required in a denial of access to public records. The Department did not identify the records in its possession that it intends to withhold from disclosure. Further, the Department merely cites the exemptions discussed above without any explanation of the applicability of those exemptions to the responsive records. Additionally, where the investigation has been closed for 33 years, and both

Allison Mondello SPR22/2887 Page 5 January 4, 2022 the victim and the defendant are deceased, it is unclear how any privacy interest would be involved, and it is similarly unclear how any investigation could remain ongoing. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Carey with a response to her request, provided 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Carey, Esq.