Greta Jochem v. Department of State Police (SPR 20242810)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2024 SPR24/2810 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Greta Jochem, of the Republican/MassLive, 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 September 25, 2024, Ms. Jochem requested, “records related to the arrest of [an identified individual] on 9/21/2024” including: [1] All evidence, including documents and video surveillance footage, footage obtained from MGM Springfield, any cellphone data such as text messages and GPS data taken from [an identified individual’s] phone, related to [an identified individual’s] arrest[;] [2] Any communication between state police -- including text messages, emails, and recordings of phone calls -- on 9/21/24 about [an identified individual]. The Department responded on October 9, 2024. Unsatisfied with the response, Ms. Jochem petitioned this office and this appeal, SPR24/2810, 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); 950 C.M.R. 32.06(3); see also Dist. 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 SPR24/2810 Page 2 October 24, 2024 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 Department’s October 9th Response In its October 9, 2024 response, the Department identified the responsive record as follows. : [1] Booking photograph. [2] Massachusetts State Police Case Report 2024-GEU-810 (11 pages). [3] Motor vehicle citation T2116622. [4] B3 State Police Springfield log note 24-48250. [5] 24-48206 Property Check log. [6] Massachusetts Office of Alcohol Testing documents BATS- Completion Records, Breath Test Report Form; Statutory Rights and Consent Form, and Notice of Suspension for a Chemical Test Refusal. [7] Six (6) body worn camera videos that include the booking of the subject of the request and one (1) cruiser mounted camera video. [8] Crime Scene Services Section (CSSS) records: a. Thirty-eight (38) Crime Scene Services Section photographs of vehicle and damage. b. CSSS File Folder lab #24-21066 (5 pages). c. Evidence submission form 24-21066-1 (Photo CD). d. Chain of Custody Report. The Department further advised that it produced the booking photograph. The Department also stated that it “. . . was unable to locate any surveillance footage or cell phone records in its possession [or] . . . any responsive email communications.” The Department cited Exemption (f) of the Public Records Law with regard to Items 2 through 8. Current appeal In her appeal Ms. Jochem states, “[an identified individual] was arrested on 9/21/24, charged with a OUI, plead in court, and he is now on probation. While some elements of the incident may still be under investigation, I do not believe that is a blanket exemption to withhold nearly every record the office has, especially records that are related to a criminal case that has been dealt with. Further, I would request that when the current investigation is closed that any materials currently exempt under exemption F be released to the public rather than me having to make another request and go through this process again.”

Allison Mondello SPR24/2810 Page 3 October 24, 2024 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 Department advised that “[r]eleasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. There is an interest in preserving the integrity of the investigation and any potential subsequent prosecution if the investigation results in further criminal charges. 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 further criminal prosecution and dissuade witnesses from speaking freely with police concerning matters under investigation. Therefore, the records you seek are not available at this time pursuant to G.L. c. 4, §7, cl. 26 (f).” Although the Department claims it has an ongoing investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide 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). 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). The Department must clarify.

Allison Mondello SPR24/2810 Page 4 October 24, 2024 As a result, I find that the Department did not meet its burden of specificity in claiming Exemption (f) of the Public Records Law to withhold the records in their entirety. Conclusion Accordingly, the Department is ordered to provide Ms. Jochem with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Jochem may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely. Manza Arthur Supervisor of Records cc: Greta Jochem