Grace Ferguson v. Department of State Police (SPR 20243048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2024 SPR24/3048 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Grace Ferguson 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 October 10, 2024, Ms. Ferguson requested “all investigative reports for the incident that occurred at [a specified address in] New Bedford on or about June 1 or 2, 2023.” The Department responded on October 28, 2024. Unsatisfied with the Department’s response, Ms. Ferguson petitioned this office, and this appeal, SPR24/3048, 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. 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 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 SPR24/3048 Page 2 November 21, 2024 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 28th Response In its October 28, 2024 response, the Department cites Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its October 28th response, under Exemption (f), the Department argues the following:

Allison Mondello SPR24/3048 Page 3 November 21, 2024 Given the fact that the subject incident is related to an open and active investigation, the reports you seek regarding it are not subject to public dissemination pursuant to G.L. c. 4, §7 cl. 26(f)(investigative). . . . Moreover, the general rule is that investigative materials may only be withheld if disclosure affects investigative efforts in general. However, there is no requirement that an investigative agency demonstrate prejudice to an on-going investigation in order to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Boston Police Comms., 378 Mass. 281, 290, n. 18 (1979). Whereas witness information and testimony is essential to efficient and effective law enforcement, the investigative exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). The disclosure of the names of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. G.L. c. 4. §7, cl. 26 (f), therefore, allows the permanent withholding of the name(s) and identifying details of witnesses. The investigative exemption, moreover, allows an investigative agency to withhold from public disclosure any information contained in a witness statement which, if disclosed, would create a grave risk of directly or indirectly identifying the voluntary witness(es). The courts have recognized that “there is good reason to encourage individual citizens and police to be cooperative, forthright and candid in their dealings with investigators. (citations omitted).” In so recognizing this principle, the Appeals Court noted that “[c]oncerns as to confidentiality and promotion of candor are protected … by the privacy and investigatory exemptions.” Worcester T&G v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9 n.8 (2003). Based on the Department’s response, although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. In particular, the Department must explain whether records can be redacted in order to protect the identities 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 (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 Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (f). 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”).

Allison Mondello SPR24/3048 Page 4 November 21, 2024 Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson 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: Grace Ferguson