Joseph F. Krowski v. Suffolk County District Attorney's Office (SPR 20222940)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2023 SPR22/2940 Andrew Doherty, Esq. Assistant District Attorney Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Attorney Joseph Krowski appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 9, 2022, Attorney Krowski requested the following: Incident reports; Investigation Reports; Investigator notes; written witness statements; reports of substance of oral witness statements; reports/affidavits filed in application for criminal complaint; reports/affidavits filed in application for arrest warrant; all letters, correspondence, emails, faxes, notices, memoranda, notes of calls, and communications of any kind among or between the Suffolk County District Attorney’s Office, the Suffolk County Sheriff’s Department, and the Department of Immigration and Customs Enforcement re: the charges against [a named individual] and his deportation on or about January 17, 2018. The Office responded on December 15, 2022, denying the request. Unsatisfied with the Office’s response, Attorney Krowski 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

Andrew Doherty, Esq. SPR22/2940 Page 2 January 10, 2023 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. 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 Office’s December 15th Response In its December 15, 2022 response, the Office cites Exemptions (d) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d), (f). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

Andrew Doherty, Esq. SPR22/2940 Page 3 January 10, 2023 Under Exemption (d), the Office argues that “materials concerning ongoing litigation are exempt from production under the public records law under G.L. c. 4, § 7(26)(d).” Based on the Office’s response, I find the Office has not met its burden to withhold records pursuant to Exemption (d). In particular, the Office has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Further, the Office has not demonstrated how any responsive records constitute attorney work product under Exemption (d). See DaRosa, 471 Mass. at 448. 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 cites docket 1801CR000160, stating that “this case remains open,” and argues the following: [P]roduction of the records related to this case in not in the public interest as it could jeopardize an active and ongoing investigation and would contravene any potential defendant’s constitutional right to a fair trial. Since the materials that [Attorney Krowski is] asking for bear directly upon matters to which witnesses may testify, public dissemination of the materials could potentially interfere with any witnesses’ ability to testify based on their actual recollection. Moreover, the potential jury pool could be tainted by publication of details of the incident[.]

Andrew Doherty, Esq. SPR22/2940 Page 4 January 10, 2023 In his appeal petition, Attorney Krowski argues the following: The records sought will not prejudice the Suffolk DA’s case. A straight warrant was filed against [the individual named in the request] in BMC-Central before his deportation. That warrant has been pending in the system for nearly five (5) years. The likelihood that [the individual] will re-enter the United States and be prosecuted on the charges is non-existent. ... Following his deportation, investigators deemed the case against [the individual] ‘closed.’ Based on the Office’s response, and the information provided in Attorney Krowski’s appeal petition, it is unclear how the withheld documents constitute investigatory materials. It is additionally uncertain whether the records pertain to an ongoing investigation. Further, the Office did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (d) and (f). See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Office is ordered to provide Attorney Krowski with a response to his 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: Joseph Krowski, Esq.