Emma Rindlisbacher v. Plymouth District Attorney's Office (SPR 20233012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/3012 Kristin Freeman, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Freeman: I have received the petition of Emma Rindlisbacher, of Nemasket Week, 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 November 6, 2023, Ms. Rindlisbacher requested, “... body camera footage from [an identified] officer that begins at the end of the body camera footage already released by the Lakeville police department and continues for thirty additional minutes” relating to an officer shooting. Subsequently Ms. Rindlisbacher modified her request “to increase the length of time of the video footage from 30 minutes to three hours.” The Office responded on November 15, 2023. Unsatisfied with the response. Ms. Rindlisbacher petitioned this office and this appeal, SPR23/3012, 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(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 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

Kristin Freeman, Esq. SPR23/3012 Page 2 December 28, 2023 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). 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 November 15th Response In its November 15, 2023 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. Subsequently, the Office provided a further response on December 20, 2023. In its response, the Office provided more explanation for withholding the requested records pursuant to Exemption (f) of the Public Records Law. 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. In its November 15th response, the Office stated, “[a]t this time the case is still pending in Plymouth County, and, as such, we cannot provide what you requested.” In its December 20th response, the Office explained, The disclosure of this video could not only compromise the prosecution of this

Kristin Freeman, Esq. SPR23/3012 Page 3 December 28, 2023 case, but could also prejudice the defendant’s right to a fair trial. See Newspapers of New England v. Clerk Magistrate of the Ware Div, of the District Court Dep’t., 403 Mass. 628, 637 (1988) (defendant’s Sixth Amendment right to a fair trial is ‘invaded by disclosure’ of investigative material while the criminal prosecution is pending); In re Enforcement of a Subpoena, 463 Mass. 16 2, 177 n. 8 (2012) (“a court may limit public access to court records where the information disclosed ‘might impair a defendant’s right to a fair trial.’”) The investigatory exemption also avoids “the premature disclosure of the Commonwealth’s case prior to trial.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Current appeal In her November 20, 2023 appeal, Ms. Rindlisbacher asserts, “I would like to note that footage after the initial two minute segment that was publicly released was given to the defense attorney for [an identified individual], and the defense attorney described that footage publically in court. So the public already has access to essentially a description of the footage past the two minute mark.” Although the Office claims it has an open investigation regarding the requested recording, it is unclear how the recording, in its entirety, can be withheld under Exemption (f). It is unclear from the Office’s response whether the recording contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Where a portion of the recording appears to have been released publicly, it remains unclear how release of the complete footage would be prejudicial to the Defendant or compromise the prosecution. The Office must clarify. Further, the Office did not demonstrate how disclosure of any segregable portion of the responsive recording “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 v. Police Comm’r of Boston, 378 Mass. 281, 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 Office is ordered to provide Ms. Rindlisbacher 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. Ms. Rindlisbacher may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Kristin Freeman, Esq. SPR23/3012 Page 4 December 28, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher