Deirdre L. Thurber v. Worcester County District Attorney's Office (SPR 20242123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2123 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Attorney Deirdre L. Thurber, on behalf of Christian Muller, appealing the nonresponse of the Worcester 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 January 19, 2022, Mr. Muller requested “…all the materials [and] relative statements taken from [a named individual] on July 9, 2007, including but not limited to written memos, notes, statements, reports, audio, and video tapes.” Previous Appeals This request was the subject of previous appeals. See SPR22/1018 Determination of the Supervisor of Records (May 12, 2022) and SPR22/2353 Determinations of the Supervisor of Records (October 31, 2022; March 16, 2023; and April 12, 2024). In my April 12th determination, I ordered the Office to provide Attorney Thurber with a response to the request, provided in a manner consistent with the previous order, the Public Records Law and its Regulations within five (5) business days. Subsequently, the Office responded on April 23, 2024, reiterating its claims under Exemptions (a) and (f) of the Public Records Law for withholding responsive records. Unsatisfied with the Office’s response, Attorney Thurber petitioned this office, and this appeal, SPR24/2123, 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, 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

Mark Relation, Esq. SPR24/2123 Page 2 August 8, 2024 § 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 Office’s April 23rd Response In its April 23, 2024 response, the Office claims that the responsive records are exempt from disclosure pursuant to Exemptions (a) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (f). 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.

Mark Relation, Esq. SPR24/2123 Page 3 August 8, 2024 Under Exemption (a), the Office cites rule 30 of the Massachusetts Rules of Criminal Procedure, which provides in pertinent part: Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order. Mass. R. Crim. P. 30(c)(4). In its April 23rd response, under rule (3), the Office argues the following: Because this request amounts to a request for post-trial discovery, the request is properly resolved under rule 30 of the Massachusetts Rules of Criminal Procedure, because “discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed” by the Supreme Judicial Court. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Consequently, the requested materials are “by necessary implication” exempt from disclosure under the public records law according to G.L. c. 4 § 7(26)(a) for the reasons outlined in our May 25, 2022 letter. Based on its April 23rd and previous responses, the Office has not demonstrated how the language of rule 30 specifically or by necessary implication permits the Office to withhold the requested records from disclosure. Consequently, I find the Office has not met its burden to withhold the records under Exemption (a) of the Public Records Law. 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.

Mark Relation, Esq. SPR24/2123 Page 4 August 8, 2024 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 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 April 23rd response, under Exemption (f), the Office argues the following: The Supreme Judicial Court in Bougas held that public disclosure of “statements taken from witnesses . . . would in the terms of the statute ‘probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest’ even when a criminal investigation has closed.” . . . Rafuse considered a subpoena issued during discovery in civil litigation for information and records from an open and unresolved homicide investigation, not a public records request for records from a closed criminal case. The resulting dicta analyzing the investigatory exemption found that a passage of ten years since the commission of the crime, the fact that the records sought included statements made by a subject of a criminal investigation to police, and the availability of the requested records through other sources merely “cas[t] doubt about the alleged need for the confidentiality” without negating that need. Rafuse, 61 Mass. App. Ct. at 600. Indeed, the court held that Counsel for the parties shall not disclose the contents of the documents received from the district attorney’s office to anyone but their clients except with the consent of that office or by leave of a justice of the Superior Court, and the parties are not to use the information and materials provided for any purpose other than this action. Id., at 602. Ultimately, this “doubt” was not sufficient to overcome the need for confidentiality, a need that the court in Rafuse recognized and upheld in their order prohibiting any public disclosure of the requested records. To the extent that Rafuse can be used to inform the boundaries of the investigatory exemption, it

Mark Relation, Esq. SPR24/2123 Page 5 August 8, 2024 holds that even after a period of ten years and even when some of the requested information may be available from other sources, statements made by the subject of a criminal investigation to police are not public records and may rightfully be withheld from public view. Based on the Office’s April 23rd response, although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. The Office must explain whether the records can be redacted in order to protect the identity of voluntary witnesses, so that segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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). Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold or redact. The Office must identify the records, categories of records, or portions of records it intends to withhold or redact under the Exemptions cited above. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Office is ordered to provide Attorney Thurber 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. Sincerely, Manza Arthur Supervisor of Records cc: Deirdre L. Thurber, Esq.