Mass Accountability Network v. Massachusetts Department of State Police (SPR 20232485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2023 SPR23/2485 Allison Mondello Public Records Manager Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Massachusetts Accountability Network appealing the response of 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 September 20, 2023, the requestor sought “... the BWC footage of [an identified] Trooper, from when he and a Sgt. approached me in the Salem District Courthouse outside of courtroom F and any supplemental reports of this interaction, along with the name and badge number of the Sgt.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2413 Determination of the Supervisor of Records (October 18, 2023). In my October 18th determination, I learned that the Department provided a further response on October 11, 2023, and closed the appeal. In the Department’s October 11, 2023 response, it stated that it was withholding a responsive record pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR23/2485, 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 SPR23/2485 Page 2 November 2, 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) (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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department’s October 11th response In the Department’s October 11, 2023 response, it identified a single responsive record and cited Exemption (f) of the Public Records Law to withhold the responsive record. 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 at 62. 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. Regarding Exemption (f) the Department stated the following: Please be advised that, according to information provided to this office, this incident remains the subject of an ongoing investigation. In light of the pending investigation, the record(s) you seek 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

Allison Mondello SPR23/2485 Page 3 November 2, 2023 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. See Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). See also, Supervisor of Public Records No.: SPR15/203 (upholding the Department’s withholding of records related to an ongoing investigation). Although the Department claims that there is an ongoing investigation regarding the requested records, it is unclear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Also, it is uncertain how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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 the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. The requestor may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Massachusetts Accountability Network