Colman Herman v. Plymouth County District Attorney's Office (SPR 20230315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2023 SPR23/0315 Karen Palumbo, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Colman Herman appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 5, 2023, Mr. Herman requested “... a copy of the police report for the automobile accident that occurred on May 16, 2022 in which [a named individual] was killed.” On February 13, 2023, the Office responded. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR23/0315, was opened as a result. The Office also provided Mr. Herman with a letter on February 13, 2023 regarding his request. 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(d)(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…”); 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). 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

Karen Palumbo, Esq. SPR23/0315 Page 2 March 3, 2023 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 February 13th Response In its February 13, 2023 response, the Office stated: Unfortunately, at this time we cannot provide you with these documents because the documents are exempt from disclosure under G. L. c. 4, § 7 (26). In particular, the following exemptions apply to these documents: Investigatory G. L. c. 4, § 7 (26)(f) materials compiled out of public view by law enforcement/investigatory officials where disclosure of which would prejudice the investigation, such that disclosure would not be in the public interest. Additionally, in a letter provided to Mr. Herman on February 13, 2023 regarding his request, the Office stated: On January 27, 2023, the Plymouth County District Attorney’s Office denied your request pursuant to the investigatory exemption [Exemption (f)]….The District Attorney’s Office asserts that the investigatory exemption still applies as there has been no change in circumstance as the prosecution is still pending. 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, 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

Karen Palumbo, Esq. SPR23/0315 Page 3 March 3, 2023 disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Please be advised, in a similar matter, I found that the Office could permissibly withhold the requested records pursuant to Exemption (f). See SPR22/1647 Determination of the Supervisor of Records (August 24, 2022). In light of the information provided by the Office explaining that “there has been no change in circumstance as the prosecution is still pending” and based upon the fact that disclosure of the requested records may prejudice the investigation, I find that the Office may permissibly withhold the requested records pursuant to Exemption (f). Please note, a change in the status of the investigation will affect the applicability of Exemption (f). Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman