Todd Wallack v. Suffolk County District Attorney's Office (SPR 20241148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1148 Andrew Doherty, Esq. Assistant District Attorney Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Suffolk 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 March 18, 2024, Mr. Wallack requested “[a] copy of images/photos of a black SUV described in [specified] court records.” The Office responded on April 1, 2024 and again on April 5, 2024, denying the request, and claiming that the responsive records are exempt from disclosure under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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. 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 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

Andrew Doherty, Esq. SPR24/1148 Page 2 May 1, 2024 custodian must provide the responsive records. The Office’s April 1st and April 5th Responses In its April 1, 2024 response, the Office indicates that it is withholding two responsive records, and in its April 5, 2024 response, the Office indicates that the records are being withheld pursuant to Exemption (f) of the Public Records Law. 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. In its April 5th response, under Exemption (f), the Office argues the following: The best fit for an exemption appears to be (f), which forbids the disclosure of confidentially compiled investigatory materials where the public disclosure of such materials would probably so prejudice the possibility of effective law enforcement such that disclosure would not be in the public interest. Here, where [the Office’s] claim of exemption is based solely on the possible interference with the defendant’s various rights ensuring him a fair trial, [the Office is] indirectly claiming this would prejudice the possibility of effective law enforcement.... [W]hen a criminal case has yet to be resolved, a defendant’s interest in a fair trial may trump the public’s interest in the disclosure of non-public investigatory materials. To be clear, [the Office has] confirmed with the assigned ADA in this case that, from the prosecutor’s perspective, the disclosure of this information would not interfere with the possibility of effective law enforcement.

Andrew Doherty, Esq. SPR24/1148 Page 3 May 1, 2024 The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Office’s April 5th 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 Office 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 Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request, 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: Todd Wallack