Stephanie Mello v. Department of State Police (SPR 20241335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2024 SPR24/1332; SPR24/1335 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petitions 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; SPR 24/1332 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.” SPR24/0781; SPR24/1335 On January 5, 2024, Attorney Mello requested “BWC and CMC footage,” in reference to the same incident described above. Previous Appeals These requests were the subject of previous appeals. See SPR24/0781; SPR24/0784 Determination of the Supervisor of Records (March 27, 2024). In my March 27th determination, I ordered the Department to clarify its claims under Exemption (f) for withholding responsive records. Subsequently, the Department responded on April 22, 2024, reiterating its claims under Exemption (f) for withholding records responsive to both requests. Unsatisfied with the Department’s response, Attorney Mello appealed, and these cases were opened as a result. 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 SPR24/1332; SPR24/1335 Page 2 May 15, 2024 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 custodian must provide the responsive records. The Department’s April 22nd Response In its April 22, 2024 response, the Department reiterates its claims for withholding responsive records 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-

Allison Mondello SPR24/1332; SPR24/1335 Page 3 May 15, 2024 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 22nd response, under Exemption (f), the Department argues the following: [A]ccording to information provided to this office, this incident remains the subject of an ongoing investigation by the Essex County District Attorney’s Office. In light of the pending investigation, the record(s) you seek 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. . . . Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. The Department is compelled to conduct a thorough and objective investigation of the events into this incident. There is an interest in preserving the integrity of the investigation and any potential subsequent prosecution. It is not in the public’s interest to release this information, as such release could potentially taint any potential jury pool if the investigation results in a criminal prosecution. In its April 22nd response, although the Department states that an investigation remains ongoing, the Department did not describe how the requested records are part of the investigation. Further, the Department did not provide sufficient supporting information to demonstrate how disclosure of the responsive 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).” It is additionally uncertain 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 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.

Allison Mondello SPR24/1332; SPR24/1335 Page 4 May 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Stephanie V. Mello, Esq.