Stephanie Mello v. Department of State Police (SPR 20240784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 27, 2024 SPR24/0781; SPR24/0784 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 Attorney Stephanie V. Mello appealing the responses of the Department of State Police (Department) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR24/0784 On December 13, 2023, Attorney Mello requested “the reconstruction report” referring to “a fatal motor vehicle accident that occurred on August 24, 2022 on Route 95NB in Newburyport, Massachusetts.” The Department responded on the same day, denying the request, and claiming that the responsive records were withheld pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). SPR24/0781 On January 5, 2024, Attorney Mello requested “BWC and CMC footage,” in reference to the same incident described above. The Department responded on January 9, 2024, also denying the request, and claiming that the responsive records were withheld pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s responses, Attorney Mello appealed, and these cases were 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 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 SPR24/0781; SPR24/0784 Page 2 March 27, 2024 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(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 Department’s December 13th and January 9th Responses In its December 13, 2023 and January 9, 2024 responses, the Department states that “after a diligent search of its records systems, the Department has identified the following responsive records ... 2022-CAR-000304.” The Department cites Exemption (f) of the Public Records Law for withholding the responsive records. 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 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Allison Mondello SPR24/0781; SPR24/0784 Page 3 March 27, 2024 In both its December 13th and January 9th responses, the Department argues the following under Exemption (f): [T]his incident remains the subject of an ongoing investigation. In light of the pending investigation, the record(s) [Attorney Mello] seek[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. Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the Department did not demonstrate how disclosure of the withheld records “would 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Mello with a response to the requests, 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. Sincerely, Manza Arthur Supervisor of Records cc: Stephanie Mello, Esq.