Nina Schutzman v. Worcester County District Attorney's Office (SPR 20242818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2024 SPR24/2818 Mark Relation, Esq. Assistant District Attorney Records Access Officer Worcester District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Nina Schutzman, of audiochuck Podcast Network, appealing the response of the Worcester 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 October 2, 2024, Ms. Schutzman requested “... copies of public records in relation to the homicide of [an identified individual], who went missing in January 2007, was reported missing in May 2007, and whose remains were found in September 2007 in Rutland. Records may include, but are not limited to”: [1] Case file index [2] Missing persons bulletin [3] Missing persons report [4] Case synopsis [5] Reports detailing efforts made to locate and recover the missing person [6] Incident reports [7] Supplemental reports [8] Autopsy report/coroner’s verdict/medical examiner findings [9] Any photographs or visual evidence related to the case, including of the victim [10] Crime scene photographs [11] Crime scene diagrams [12] Arrest records and/or police blotter records, if any, associated with the case [13] Any records of communication or coordination with other law enforcement agencies, search and rescue teams, or other organizations involved in the search efforts [14] ViCAP summary report, if applicable [15] CAD event sheet, if applicable [16] Media communications, including press releases 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. SPR24/2818 Page 2 October 28, 2024 [17] Witness interviews and statements [18] Audio and/or video recorded statements [19] Lead sheets [20] Search warrants and/or complaints for search warrants [21] Investigative notes [22] Evidence logs The Office provided a response on October 11, 2024. Unsatisfied with the Office’s response, Ms. Schutzman petitioned this office and this appeal, SPR24/2818, 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. Att’y 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. The Office’s October 11th Response In its October 11, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records. 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).

Mark Relation, Esq. SPR24/2818 Page 3 October 28, 2024 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. As a matter of course, 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. Bougas, 371 Mass 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, “...this office cannot fulfill your request at this time as there is a pending investigation and so all responsive records within our possession would therefore be ‘investigatory materials’ that are exempt from disclosure under the public records law. G.L. c. 4, § 7(26)(f). Once the investigation has been closed out, this office will review any materials related to your request and fulfill your request to the extent possible under the public record[s] law.” Based on the Office’s response, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is not clear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City 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. 281, 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). Further, it is unclear what types of records the Office possesses that it is withholding from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record

Mark Relation, Esq. SPR24/2818 Page 4 October 28, 2024 it intends to redact and/or withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying each of the records. Therefore, the Office must identify the record(s) it has in its possession that the Office withheld under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Ms. Schutzman 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. Ms. Schutzman may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nina Schutzman