Anna Grayson v. Norfolk County District Attorney's Office (SPR 20240290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2024 SPR24/0290 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 Appeals This request was the subject of prior appeals. See SPR23/2991 Determination of the Supervisor of Records (December 22, 2023) and SPR23/3133 Determination of the Supervisor of Records (January 12, 2024). In my January 12th determination, I found that the Office had not met its burden to withhold records under Exemption (f) of the Public Records Law. The Office responded on January 29, 2024. Unsatisfied with the response, Ms. Grayson petitioned this office and this appeal, SPR24/0290, 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. SPR24/0290 Page 2 February 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 January 29th response In its January 29, 2024 response, the Office cited Exemption (f) of the Public Records Law and active litigation to withhold records responsive to the request. Current Appeal In her appeal, Ms. Grayson states: [The Office] incorrectly states that “you argue that because the ‘subject of [your] request . . . is well known’ as it relates to an investigation of an identified individual, that should negate the applicability of exemption (f).” That is not the basis of my appeal and an oversimplified, mischaracterization of my appeal. Finally, as noted in my initial appeal, I am seeking "correspondence, sent or received, electronic or written, including attachments,..." I am not requesting testimony or witness statements… 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

Brandon P. Hunt, Esq. SPR24/0290 Page 3 February 12, 2024 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. In its response, the Office states the following: [T]he records you seek pertain to Commonwealth v. Karen Read and Commonwealth v. Aidan Kearney. See Docket Numbers 2282CR00117 (jury trial scheduled for 03/12/24), and 2382CR00313 (prosecution is being handled by a Special Assistant District Attorney) respectively. These records may contain confidential sources and information provided by witnesses, and the ability to maintain that confidentiality is crucial for efficient and effective law enforcement… The investigatory exemption is designed to enable investigative authorities to provide assurances of confidentiality to those sources, encouraging them to share information openly and voluntarily… Disclosing any identifying information of voluntary witnesses, or information that may indirectly identify confidential sources of information, may discourage future cooperation from potential witnesses and citizens in law enforcement investigations. Releasing any segregable portion of the record would jeopardize confidential sources of information. Furthermore, this record, which contains potential evidence and statements from a witness, if disclosed could amount to a premature disclosure of a piece of Commonwealth’s case prior to trial and “would probably so prejudice the possibility of effective law enforcement.”… Therefore, the investigatory exemption (f) permits the withholding of the requested records. … [Ms. Grayson] argue[s] that because the “subject of [her] request . . . is well known” as it relates to an investigation of an identified individual, that should negate the applicability of exemption (f). Public awareness of the subject does not nullify the potential harm to effective law enforcement if the requested materials are disclosed. Exemption (f) aims to protect the integrity of ongoing

Brandon P. Hunt, Esq. SPR24/0290 Page 4 February 12, 2024 investigations. Disclosing materials related to an active and ongoing investigation and prosecution, whether that investigation is publicly scrutinized or not, may still compromise the candidness of witnesses, hinder the collection of additional evidence, or undermine the overall effectiveness of law enforcement efforts... Therefore, the applicability of exemption (f) remains valid, ensuring the integrity of the investigatory process and the privacy interests of involved witnesses. Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the ongoing litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b) and further decline to opine on the applicability of Exemption (f) of the -- Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Anna Grayson