Daniel Golden v. Middlesex District Attorney's Office (SPR 20240977)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 12, 2024 SPR24/0977 Daniel DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Daniel Golden, appealing the response of the Middlesex 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 March 11, 2024, Mr. Golden requested the following: [1.] All records in the custody of the Middlesex County District Attorney Office from April 4, 1991, to December 31, 1994, relating to the killing and investigation into the killing of [a named individual]… [2.] Subpoenas and other requests for records issued as part of the investigation into the killing. [3.] Records of communications between the Middlesex County District Attorney’s Office and other law enforcement agencies (including but not limited to the Federal Bureau of Investigation) relating to the investigation. The Office responded on March 27, 2024. Unsatisfied with the response, Mr. Golden petitioned this office and this appeal, SPR24/0977, 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

Daniel DeBlander, Esq. SPR24/0977 Page 2 April 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. The Office’s March 27th Response In its March 27, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Golden states, “[t]his request concerns a crime that was committed on April 4, 1991, 33 years ago… This request is for records from April 3, 1991 to December 31, 1994. In other words, the records being sought were compiled anywhere from 29 1/2 to 33 years ago. I am not presently seeking records from January 1, 1995, to today… there is no indication (and MCDA offers no evidence) that the investigation into [a named individual]’s killing is ongoing…” 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 289-290.

Daniel DeBlander, Esq. SPR24/0977 Page 3 April 12, 2024 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 stated the following: [O]ur Office’s investigation into this death remains open… The first category of records [Mr. Golden] requested was “all records in the custody of the Middlesex County District Attorney Office from April 4, 1991 to December 31, 1994, relating to the killing and investigation into the killing of [a named individual].” Even disclosure of only records produced within this time period may result in disclosure of information relating to leads that we are currently pursuing… Disclosure of any of these records may prejudice our Office’s investigation by tainting the memories of potential witnesses, impairing future interviews with potential suspects, causing the destruction or secreting of potential evidence, assisting potential suspects by informing them of information known to the Commonwealth, assisting suspects by revealing potential leads that investigators may follow, or impeding a potential defendant’s right to select a jury that is untainted by undue pre-trial publicity… As we indicated in our response to your previous request, we will not disclose any material from this investigation file until our investigation is complete. We owe it to the victim in this case and her family to exhaust all investigative avenues before we make any public disclosure that could impede a possible prosecution in this case. Based on the Office’s response, it is unclear what type of records it possesses that it withheld from disclosure. 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 . . .”). Therefore, the Office must identify the type of records it has in its possession that it is withholding under Exemption (f). Further, 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 unclear 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 demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure

Daniel DeBlander, Esq. SPR24/0977 Page 4 April 12, 2024 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 Mr. Golden with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Daniel Golden Megan Horn, Esq.