Barry Stringfellow v. Massachusetts Department of State Police (SPR 20241099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1099 Allison Mondello Public Records Manager Massachusetts Department of State Police General Headquarters 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Barry Stringfellow appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2024, Mr. Stringfellow requested, “[t]he January 20, 2024 report by Massachusetts State Police of the arrest of [an identified individual]…we are not seeking any details about the victims of his alleged crimes…” Previous Appeal The requested records were the subject of a previous appeal. See SPR24/1050 Determination of the Supervisor of Records (April 12, 2024). In my April 12th determination, I learned the Department provided a response to Mr. Stringfellow on April 11th, and closed the appeal. Unsatisfied with the response, Mr. Stringfellow petitioned this office and this appeal, SPR24/1099, 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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 SPR24/1099 Page 2 April 25, 2024 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 April 11th Response In its April 11th response, the Department stated, “…the Department identified the following responsive records: 2024-0D4-000397 Arrest Report, 2023-102-411/8 Report, 2023- 102-411/9 Report, 2024-FTrp-1/14 Report.” The Department cited Exemption (f) of the Public Records Law to withhold those records in their entirety. Current Appeal On April 11th, Mr. Stringfellow clarified, “I am only seeking the first [report] listed: 2024-0D4-000397 Arrest Report.” In his April 12th appeal petition, Mr. Stringfellow stated, “I am seeking to file a further appeal to the MSP reply of April 11.” 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. Atto’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 SPR24/1099 Page 3 April 25, 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. Bougas 371 Mass 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 Department stated, “[i]t is not in the public’s interest to release this information, as such release could taint any potential jury pool in the criminal prosecution. Further, not releasing this information would preserve the anonymity of voluntary witnesses, and encourage witnesses from [sic] coming forward in the future and speaking freely to police concerning matters under investigation and subject to prosecution.” Although names and identifying details of victims, voluntary witnesses, and complainants may be redacted, it is unclear how the rest of the record “would 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). Additionally, while portions of the records may fall under the cited exemption, it is unclear how the records can be withheld in their entirety. 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 Department must explain whether segregable portions can be provided. Conclusion Accordingly, the Department is ordered to provide Mr. Stringfellow 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. Mr. Stringfellow may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Barry Stringfellow