Todd Wallack v. Hampden County District Attorney's Office (SPR 20242112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2112 Michael Locke, Esq. Assistant District Attorney Hampden District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Locke: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Hampden 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 10, 2024, Mr. Wallack requested “[c]opies of any applications for search warrants in the following [identified] rape/kidnapping cases involving [an identified] defendant[.]” The Office provided a response on July 24, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office and SPR24/2112, 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

Michael Locke, Esq. SPR24/2112 Page 2 August 8, 2024 The Office’s July 24th Response In its July 24, 2024 response, the Office cited Exemptions (a) and (f) of the Public Records Law to withhold the requested records. Current appeal In his appeal, Mr. Wallack states, “[i]n its opinion, the court cited M.G.L. c. 276, § 2B, which suggests search warrant materials are public except for the brief window between the time the search warrant is issued and it is returned (typically three days). The statute says in part: ‘The person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable. Upon the return of said warrant, the affidavit shall be attached to it and shall be filed therewith, and it shall not be a public document until the warrant is returned’.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Office cited G. L. c. 41, § 97D, indicating that the records are exempt from disclosure. G. L. c. 41, § 97D provides in pertinent part:

Michael Locke, Esq. SPR24/2112 Page 3 August 8, 2024 All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. In its response, the Office stated, “... these materials, if they exist, are exempt from disclosure as they would contain reports of sexual assault. See G. L. c. 41, § 97D. Such reports are exempt under the public records law as a way to foster ‘sensitivity for the rape victim’s plight’. Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 858 n.9 (1980), vacated on other grounds 449 U.S. 894 (1980), on remand 383 Mass. 838 (1981), rev’d on other grounds 457 U.S. 596 (1982).” Based upon the Office’s response, it is unclear how the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). The Office must clarify. 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. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality

Michael Locke, Esq. SPR24/2112 Page 4 August 8, 2024 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 Office stated that, “[a]ny such materials, if they exist, are exempt from disclosure under the public records laws of the Commonwealth of Massachusetts as they relate to an ongoing criminal investigation. See G. L. c. 4, § 7(26)(f). Disclosure of these materials, if they exist, would so prejudice the possibility of effective law enforcement such that disclosure at this time would not be in the public interest. These materials, if they exist, would detail information related to the incident, such as witnesses, locations, and evidence recovered. Disclosure of these materials may lead to witnesses tailoring their testimony based on the information in those materials, which would prejudice the investigation. Further, the disclosure of such materials, if they exist, could thwart further investigative techniques relating to this investigation.” Based on the Office’s response, it is unclear how the records are related to the ongoing investigation, and how the records can be withheld in their entirety under Exemption (f). It is uncertain 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 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). Further, it is not clear how the records cannot be redacted in order to protect the identity of voluntary witnesses. 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). 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. 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. Mr. Wallack may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Michael Locke, Esq. SPR24/2112 Page 5 August 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack