Anna Grayson v. Norfolk County District Attorney's Office (SPR 20233133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 12, 2024 SPR23/3133 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Anna Grayson appealing the response of the Norfolk 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 October 19, 2023, Ms. Grayson requested “[a]ny correspondence, sent or received, electronic or written, including attachments, involving any employee or appointed official at the Norfolk County District Attorney’s office that contains [one of any three specified search terms] from July 1, 2023 through present.” On November 13, 2023, Ms. Grayson modified her request with more specific search terms. Prior Appeal This request was the subject of a prior appeal. See SPR23/2991 Determination of the Supervisor of Records (December 22, 2023). In my December 22nd determination, it was my understanding that the Office provided a further response to Ms. Grayson on December 15, 2023. Unsatisfied with the response, Ms. Grayson petitioned this office and this appeal, SPR23/3133, 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, § l0A(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

Brandon P. Hunt, Esq. SPR23/3133 Page 2 January 12, 2024 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. Attorney 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 Office’s December 15th response In its December 15, 2023 response, the Office cited Exemption (f) of the Public Records Law to withhold records responsive to the request. Current Appeal In her appeal, Ms. Grayson states: The cases cited as basis for the NDAO’s use of exemption (f) appears focused on grand jury testimony, not correspondence. Additionally, in Globe Newspaper Co. v Police Com’r of Boston, some requested materials were released even though there was information related to grand jury testimony because the identity of the witness and the witness’s testimony was previously disclosed. The subject of this request… is well-known as it relates to the current trial of [a named individual]. [Named individual] has put herself out there on social media including Twitter and Youtube. [Named individual] frequently appears “live” on Youtube, broadcasting to thousands of followers… Exemption (f) should not apply if records responsive to this request concerns either investigation into [named individuals]. 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

Brandon P. Hunt, Esq. SPR23/3133 Page 3 January 12, 2024 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 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Office states, “[t]he records [Ms. Grayson] seek[s] are presently exempt from public disclosure pursuant to statutory exclusions because correspondence containing the above identifying terms pertains to an active and ongoing criminal investigation…” Although the Office claims it has an open investigation regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is additionally uncertain from the Office’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Office did not provide any supporting information to 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). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Grayson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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.

Brandon P. Hunt, Esq. SPR23/3133 Page 4 January 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Anna Grayson