Greta Jochem v. Office of the Attorney General (SPR 20242812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2812 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Greta Jochem, of the Republican/MassLive, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 23, 2024 and September 25, 2024, Ms. Jochem requested, [1] ... any body camera footage from the arrest of [an identified individual] on Sept. 21, 2024, footage from the booking of [an identified individual] for his arrest on Sept. 21, 2024, any mug shots taken of [an identified individual] for his Sept. 21, 2024 arrest. It’s my understanding that the AG’s office has jurisdiction over this case because it was on the property of a casino. [2] All documentation and information – including police reports and video surveillance footage, police dash cam video, all police communication, any data taken from [an identified individual’s] cellphone – related to the arrest of [an identified individual] in Springfield, MA on 9/21/2024[.] The AGO responded on October 7, 2024. Unsatisfied with the response, Ms. Jochem petitioned this office and this appeal, SPR24/2812, 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 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

Hanne Rush, Esq. SPR24/2812 Page 2 October 25, 2024 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. 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 AGO’s October 7th response In the AGO’s October 7, 2024 response, the AGO claimed Exemption (f) of the Public Records Law to withhold the records in their entirety. Current appeal In her appeal, Ms. Jochem asserts, “[w]hile some elements of the incident may still be under investigation, I do not believe that is a blanket exemption to withhold every record, 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.” 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

Hanne Rush, Esq. SPR24/2812 Page 3 October 25, 2024 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 AGO advised that “... we are withholding in their entirety records that may be responsive to your requests in accordance with G.L. c. 4, § 7, cl. 26(f), as they constitute investigatory materials related to an open investigation that reveal confidential sources of information that are necessarily compiled out of the public view by law enforcement officials, the disclosure of which would so compromise effective law enforcement by prematurely releasing information about the nature of our investigation and/or cause a chilling effect on individuals to speak freely with law enforcement, that such disclosure would not be in the public interest.” The AGO further opined “[w]e have determined that because the exempt information is so interwoven within the text of these records, proper redaction would render them meaningless and therefore, withholding them in their entirety is appropriate in this instance.” It is our understanding that the Department of State Police (Department) received a similar request from Ms. Jochem. On October 9, 2024, the Department responded and identified the records in its possession. Thus, I find it unclear why the AGO cannot also identify the records in its possession that it intends to withhold under Exemption (f) of the Public Records Law. Conclusion Accordingly, the AGO is to provide Ms. Jochem with a response to the request, provided in a manner consistent with this determination, 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. Jochem may appeal the substantive nature of the AGO’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem