Greta Jochem v. Department of State Police (SPR 20243242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3242 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Greta Jochem, of the Republican/MassLive, 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 September 25, 2024, Ms. Jochem requested, “records related to the arrest of [an identified individual] on 9/21/2024” including: [1] All evidence, including documents and video surveillance footage, footage obtained from MGM Springfield, any cellphone data such as text messages and GPS data taken from [an identified individual’s] phone, related to [an identified individual’s] arrest[;] [2] Any communication between state police -- including text messages, emails, and recordings of phone calls -- on 9/21/24 about [an identified individual]. Previous Appeal This request was the subject of a previous appeal. See SPR24/2810 Determination of the Supervisor of Records (October 24, 2024). In my October 24th Determination, I found that the Department had not met its burden to withhold the responsive records, in their entirety, under Exemption (f). The Department responded on November 7, 2024. Unsatisfied with the response, Ms. Jochem petitioned this office and this appeal, SPR24/3242, 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

Allison Mondello SPR24/3242 Page 2 December 13, 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. Current appeal In her appeal, Ms. Jochem asserts, “I am appealing that response and am requesting the Supervisor of Records Office do an in-camera review of the records. Hampden County [identified individual] was arrested on September 21, 2024 outside MGM Springfield. He was arraigned on an OUI charge in court less than two days later, pleaded to facts sufficient and is now on probation. Because his case has been adjudicated, I believe that there are at the very least, portions of these records are public.” Ms. Jochem further states, “[i]t’s strongly in the public’s interest to be able to access the documentation related to the arrest of a public official, including the police report, the property check log, the body camera footage and the citation. If the Attorney General’s Office investigation is still open, I would ask anything directly related to it be redacted. Considering one can’t be tried for the same crime twice and [an identified individual’s] OUI case has been adjudicated and was prosecuted by the AG’s office, these records should not be exempt from public inspection in their entirety.” The Department’s November 7th Response In its November 7, 2024 response the Department cited Exemption (f) of the Public Records Law to withhold the records 2 through 8 in their entirety. In its prior October 9, 2024 response, the Department identified the responsive records as follows and produced the booking photograph. [1] Booking photograph. [2] Massachusetts State Police Case Report 2024-GEU-810 (11 pages). [3] Motor vehicle citation T2116622. [4] B3 State Police Springfield log note 24-48250. [5] 24-48206 Property Check log. [6] Massachusetts Office of Alcohol Testing documents BATS- Completion Records, Breath Test Report Form; Statutory Rights and Consent Form, and

Allison Mondello SPR24/3242 Page 3 December 13, 2024 Notice of Suspension for a Chemical Test Refusal. [7] Six (6) body worn camera videos that include the booking of the subject of the request and one (1) cruiser mounted camera video. [8] Crime Scene Services Section (CSSS) records: a. Thirty-eight (38) Crime Scene Services Section photographs of vehicle and damage. b. CSSS File Folder lab #24-21066 (5 pages). c. Evidence submission form 24-21066-1 (Photo CD). d. Chain of Custody Report. 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. In its November 7, 2024 response the Department stated, The records identified in items 2-8, are investigatory because it documents the Departments course of an investigation into an alleged criminal offense that led to an identifiable person’s arrest. The records detail the Department investigator’s observations, response, and follow up investigation, criminal charges, and an identifiable person’s arrest. The records were compiled within the Department and out of public view for the purposes of a criminal investigation and subsequent prosecution. The investigatory records in items 2-8 could potentially be utilized by the Attorney General’s Office or a defense attorney during the course of any potential future criminal or court proceedings. No portion of the

Allison Mondello SPR24/3242 Page 4 December 13, 2024 records in items 2-8 are segregable, as the entire records are investigatory in nature. The policy considerations of the investigatory exemption are well settled. They include the “avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions. See, Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The Department again confirmed with the Attorney General’s Office that this incident remains the subject of an on-going investigation by the Attorney General’s Office. Where the identified individual’s case has been adjudicated, it is unclear how the records, in their entirety, can be withheld under Exemption (f). Also, although the Department claims that the “. . . incident remains the subject of an on-going investigation by the Attorney General’s Office[,]” it is not clear from the Department’s response how the requested records are directly related to that investigation. 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 Ms. Jochem 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. Ms. Jochem may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely. Manza Arthur Supervisor of Records cc: Greta Jochem