Colman Herman v. Plymouth County District Attorney's Office (SPR 20231756)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2023 SPR23/1756 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 July 12, 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 July 27, 2023, the Office responded. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR23/1756, 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. 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. 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. SPR23/1756 Page 2 August 14, 2023 The Office’s July 27th Response In its July 27, 2023 response, the Office stated: Unfortunately, at the 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. 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 disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Burden of specificity in claiming exemptions 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).

Karen Palumbo, Esq. SPR23/1756 Page 3 August 14, 2023 The Office’s response did not contain the specificity required in a denial of access to public records. The Office cites Exemption (f) without any explanation of the applicability of the exemption to the responsive records. It is unclear how 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. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Consequently, the Office has not met its burden of specificity to withhold the responsive records pursuant to Exemption (f). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman