John Hilliard v. Massachusetts State Police (SPR 20231848)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2023 SPR23/1848 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 John Hilliard, of the Boston Globe, appealing the response the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 26, 2023, Mr. Hilliard requested the following: Any requests for service at Sesuit Harbor, Dennis, on Friday, July 21, from approximately 8 p.m. to midnight Any reports, recordings of emergency calls or transmissions related to requests for service at Sesuit Harbor, Dennis, during that period. This request includes, but is not limited to, any supplemental dispatch notes, records or other paper or electronic documents related to calls for service. The Department responded on August 9, 2023, citing Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Hilliard 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 SPR23/1848 Page 2 August 22, 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 Department’s August 9th Response In its August 9, 2023 response, the Department identifies the following records responsive to Mr. Hilliard’s request: [1.] Cape and Island State Police Detective Unit Case Number 2023-102-244... [2.] 2023-0D2-002529 D2 South Yarmouth Daily Administrative Journal Entry for July 21, 2023. [3.] Police radio communications 2023-0D2-002529 (6:48). [4.] 23-14987 Marine Patrol Call for Service report (1 page). The Department cites Exemption (f) of the Public Records Law for withholding the records listed above. See 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 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

Allison Mondello SPR23/1848 Page 3 August 22, 2023 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department argues the following: [T]his incident remains the subject of an ongoing investigation by the Cape and Island District Attorney’s Office and State Police Detectives Unit. In light of the pending investigation, the record(s) ... are not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f), which specifically exempts from public disclosure 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. . . . Based upon the forgoing and given the pendency of the investigation, the Department denies the request at this time. There is no date certain by which the investigation will be complete. In this case, although the Department states that the requested records are associated with an active and ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not provide any supporting information to demonstrate how disclosure of the responsive records would compromise or negatively impact the ongoing investigation or “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).” G. L. c. 4, § 7(26)(f). The Department must clarify these matters. It is additionally uncertain how the records can be withheld in their entirety. The Department must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Hilliard 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.

Allison Mondello SPR23/1848 Page 4 August 22, 2023 Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard Keith Paquette, Esq.