Christine Willmsen v. Cape & Islands District Attorney's Office (SPR 20242065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2065 Catherine Bumpas, Esq. Director of Policy and Programs Records Access Officer Cape & Islands District Attorney’s Office 3231 Main Street Barnstable, MA 02630 Dear Attorney Bumpas: I have received the petition of Christine Willmsen, of WBUR, appealing the response of the Cape & Islands 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 July 8, 2024, Ms. Willmsen requested “... an electronic copy of applications for search warrants and warrant returns for the following [identified five] cases that involve [an identified individual].” The Office provided a response on July 11, 2024. Unsatisfied with the Office’s response, Ms. Willmsen petitioned this office and this appeal, SPR24/2065, 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. G. L. c. 66, § 10(b)(iv) (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…”); 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). 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

Catherine Bumpas, Esq. SPR24/2065 Page 2 August 2, 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 Office’s July 11th Response In its July 11, 2024 response, the Office stated that there is an “...open case that has two docket numbers associated with it, because one has been transferred to Superior Court.” The Office cited Exemption (f) to withhold this one identified case. The Office also stated: For docket numbers 0126CR002984, 0225CR000588, 0272CR00052 we are unable to locate case records. The docket numbers indicate that they are quite old cases, from 2001 and 2002, thus the records retention requirements that the Cape and Islands District Attorney’s Office is required to follow have been exceeded. The Clerk of Courts office may have a longer retention policy and be able to help you with this. 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 response, the Office stated that “[t]he information associated with that case is exempt from disclosure, at this time, per GL c. 4 s. 7(f).”

Catherine Bumpas, Esq. SPR24/2065 Page 3 August 2, 2024 Although the Office claims it has transferred one open case to the Superior Court regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Office’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Office did not 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). 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, it is unclear which records the Office intends to withhold under Exemption (f) of the Public Records Law. G. L. c. 66, § 10(b)(iv) (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. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Willmsen 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. Ms. Willmsen may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christine Willmsen