Emma Rindlisbacher v. Plymouth County District Attorney's Office (SPR 20241581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2024 SPR24/1581 Karen Palumbo, Esq. Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Emma Rindlisbacher appealing the response of the Plymouth 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 May 3, 2024, Ms. Rindlisbacher requested “[a] copy of the video showing [an identified individual]’s arm ‘arm in motion toward the victim at multiple different points’.” Prior Appeal This request was the subject of a prior appeal. See SPR24/1385 Determination of the Supervisor of Records (May 17, 2024). In my May 17th determination, it was my understanding that the Office provided Ms. Rindlisbacher with a further response dated May 8, 2024. Unsatisfied with the response, Ms. Rindlisbacher petitioned this office and this appeal, SPR24/1581, 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, § l0A(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 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

Karen Palumbo, Esq. SPR24/1581 Page 2 June 10, 2024 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 Office’s May 8th response In its May 8, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold responsive records. Current Appeal In her appeal, Ms. Rindlisbacher states, “I am appealing the DA’s office application of the investigatory exemption, which does not apply to my request in the way that the DA’s office has argued.” 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. 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

Karen Palumbo, Esq. SPR24/1581 Page 3 June 10, 2024 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. In its response, the Department stated, “[t]he requester would like to see the part of the video that depicts the defendant’s arm moving in a stabbing motion. She also wants the recorded statement of the defendant where he describes his actions and asserts that he was acting in self- defense. Whether or not the defendant was acting in self-defense is the crux of the case. The videos in question bear on the very issues to be decided at trial by an impartial jury. Disclosure of these videos may not only compromise the Commonwealth’s case prior to trial, but also may compromise the defendant’s right to a fair trial… The Commonwealth acknowledges that the investigatory exemption must be examined on a case by case basis and that circumstances may change over time. Where, as here, the prosecution is currently pending, any disclosure of the videos requested would compromise this prosecution and the defendant’s sixth amendment right to a fair trial.” Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the ongoing litigation, Commonwealth v. Jayden Wainwright (2383CR00166), I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Karen Palumbo, Esq. SPR24/1581 Page 4 June 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher