Lilly D. Cushman v. Middlesex County District Attorney's Office (SPR 20243240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3240 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Lilly Cushman, Esq., of Boyle Shaughnessy Law, appealing the response of the Middlesex 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 23, 2024, Attorney Cushman requested, “all documents in the possession or control of the Middlesex County District Attorney’s Office related to the September 27, 2024, motor vehicle – bicyclist incident … that occurred at or around the corner of Arsenal Street and Coolidge Avenue in Watertown, MA.” The Office responded to Attorney Cushman’s request on November 4, 2024. Unsatisfied with the Office’s response, Attorney Cushman appealed, and this case, SPR24/3240, 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 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

Daniel M. DeBlander, Esq. SPR24/3240 Page 2 December 13, 2024 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. Current Appeal In Attorney Cushman’s appeal, she states: Without having seen the specifically withheld documents, we cannot argue how these limitations may apply to the specific documents. But, importantly, the DA does not even acknowledge these limitations in their letter denying our G.L. c. 66 § 10 request. They, therefore, have not proven ‘with specificity’ that the claimed exemptions apply, as required by statute. See G.L. c. 66, § 10(c). In light of the limitations discussed and the DA’s failure to state their objections with specificity, we ask that the Supervisor of Records allow this Appeal. The DA must provide specific details that demonstrate why disclosure of any of these records is prejudicial to effective law enforcement and prosecution, beyond simply stating that these records may reveal the Commonwealth’s case. We argue that the DA’s response to our letter is inadequate as it fails to prove that the cited exemptions apply. The Office’s November 4th Response In its November 4, 2024 response, the Office withheld the requested records pursuant to Exemption (f) of the Public Records Law. 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

Daniel M. DeBlander, Esq. SPR24/3240 Page 3 December 13, 2024 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 November 4th response, the Office states, “this incident is the subject of an open and ongoing criminal investigation. Any disclosure of records at this stage would involve ‘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.’ See G.L. c. 4, § 7 (26)(f). Disclosure of any evidence at this time is presumptively prejudicial to effective law enforcement and prosecution as it may reveal the Commonwealth’s case should criminal charges be filed….It is not possible for this Office to say with any precision when this investigation will be closed.” Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Specifically, it is unclear how the records pertain to the ongoing investigation or how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). The Office must explain whether the records can be redacted such that segregable portions of the footage can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 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). In addition, the Office did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. 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 it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Office must identify the record(s) it has in its possession that the Office withheld under Exemption (f). Conclusion Accordingly, the Office is ordered to provide a response to Attorney Cushman in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Daniel M. DeBlander, Esq. SPR24/3240 Page 4 December 13, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Lilly Cushman, Esq.