Joseph C. Boresllino v. Department of State Police (SPR 20243156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3156 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 Attorney Joseph Borsellino, 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 July 12, 2024, Attorney Borsellino requested the following regarding a specified incident: [1] All investigative and incident reports and Crash Reports; [2] All video footage of the incident taken by any street or other camera footage; [3] All photographs taken by the police of the vehicles and scene; [4] All citations issued by the MSP; [5] All contact information and statements of witnesses; [6] All 911 calls and/or tapes of calls pertaining to the incident; [7] All logs and journals of all calls involving the MSP related to the event; and, [8] All body or dash cam video of the incident and/or the scene[.] Prior Appeal This request was the subject of a prior appeal. See SPR24/2592 Determination of the Supervisor of Records (September 24, 2024). In my September 24th determination, I ordered the Department to provide Attorney Borsellino with a response to his request. The Department responded on October 24, 2024, denying access to the responsive records under Exemption (f) of the Public Records Law. Unsatisfied with the response, Attorney Borsellino petitioned this office and this appeal, SPR24/3156, was opened as a result. 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 SPR24/3156 Page 2 December 3, 2024 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, § l0A(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 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 24th response In its October 24, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold records responsive to the request. Current Appeal In his appeal, Attorney Borsellino states the following: [The Department] produced no records and identified only 3 responsive records, none of which are privileged, and all of which are routine and ordinary public records which the department makes in all situations… This matter involves a routine auto accident. [The Department] makes the bogus objection that “such release could potentially taint any potential jury pool if the investigation results in a criminal prosecution.”… More than 120 days have passed with no criminal prosecution nor even a civil action… 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

Allison Mondello SPR24/3156 Page 3 December 3, 2024 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 289-290. Under Exemption (f), the Department stated the following: After a diligent search of its records systems, the Department has identified the following responsive records: [1.] Motor Vehicle Crash Report; 2024-0H7-004690 [2.] Administrative Journal Extract; 2024-0H7-004690 [3.] Body-Worn Camera/Cruiser-Mounted Camera Footage Please be advised that, according to information provided to this office, this incident remains the subject of an ongoing investigation. In light of the pending investigation, the record(s) [Attorney Borsellino] seek[s] are not subject to public disclosure at this time pursuant to [Exemption (f)]… Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. The Department is compelled to conduct a thorough and objective investigation of the events into this incident. There is an interest in preserving the integrity of the investigation and any potential subsequent prosecution. 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 criminal prosecution. Therefore, the records [Attorney Borsellino] seek[s] are not available currently pursuant to [Exemption (f)]. Based upon the forgoing and given the pendency of the investigation, the Department denies the request. Although the Department claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is

Allison Mondello SPR24/3156 Page 4 December 3, 2024 additionally uncertain 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 any 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 these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Borsellino 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Borsellino, Esq.