Jane Doe v. Department of State Police (SPR 20241645)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2024 SPR24/1645 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Jane Doe 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 January 17, 2024, Ms. Doe requested, “NCMEC Cyber Tip #178178641 sent by NCMEC to MSP Cyber Unit on 11/07/2023.” The Department provided a response on May 24, 2024. Unsatisfied with the Department’s response, Ms. Doe petitioned this office and this appeal, SPR24/1645, 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 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. 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 SPR24/1645 Page 2 June 14, 2024 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 May 24th response In its May 24, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In her appeal, Ms. Doe stated: The Department used the same boilerplate language that it has used in countless denial letters based on Exemption (f), including alleging that the Department has an active investigation that is pending possible criminal charges. In reality, the Department referred the matter to the Amherst Police Department following receipt of the complaint and never once conducted its own investigation, according to a Trooper assigned to the Department's Cyber Unit. In addition, according to [an identified individual] of the Amherst Police Department on May 9, 2024, the Northwestern District Attorney's Office had earlier declined prosecution and the case is closed. In addition, the Department did not provide any supporting information to demonstrate how disclosure of any segregable portion 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 under Exemption (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

Allison Mondello SPR24/1645 Page 3 June 14, 2024 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. Under Exemption (f), the Department stated: Please be advised that, according to the information provided to this office, this incident remains the subject of an ongoing investigation. 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 section 7, cl. 26 (f)…. 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. Therefore, the records you seek are not available currently pursuant to G. L. c. 4 section 7, cl. 26 (f). Based upon the foregoing and given the pendency of the investigation, the Department denies the request. There is no date certain by which the investigation will be complete, I recommend you re-submit your request at a later time. Although the Department claims it has an open investigation regarding the requested record, it is unclear how the record, in its entirety, can be withheld under Exemption (f). The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure 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). Further, in light of Ms. Doe’s claim that “. . . according to [an identified individual] of the Amherst Police Department on May 9, 2024, the Northwestern District Attorney’s Office had earlier declined prosecution and the case is closed[,]” it is unclear how the investigation remains active and ongoing at this time. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Doe with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Allison Mondello SPR24/1645 Page 4 June 14, 2024 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. Ms. Doe may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jane Doe