Greta Jochem v. Office of the Attorney General (SPR 20243243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3243 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Greta Jochem, of the Republican/MassLive, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 23, 2024 and September 25, 2024, Ms. Jochem requested, [1] [A]ny body camera footage from the arrest of [an identified individual] on Sept. 21, 2024, footage from the booking of [an identified individual] for his arrest on Sept. 21, 2024, any mug shots taken of [an identified individual] for his Sept. 21, 2024 arrest. It’s my understanding that the AG’s office has jurisdiction over this case because it was on the property of a casino. [2] All documentation and information – including police reports and video surveillance footage, police dash cam video, all police communication, any data taken from [an identified individual’s] cellphone – related to the arrest of [an identified individual] in Springfield, MA on 9/21/2024[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR24/2812 Determination of the Supervisor of Records (October 25, 2024). In my October 25th determination, I found it unclear why the AGO could not identify the records in its possession that it withheld under Exemption (f) of the Public Records Law. The AGO responded on November 8, 2024. Unsatisfied with the response, Ms. Jochem petitioned this office and this appeal, SPR24/3243, 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

Hanne Rush, Esq. SPR24/3243 Page 2 December 13, 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, § 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 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 November 8 response and am requesting the Supervisor of Records Office do an in-camera review of the records. [An 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 at the very least, portions of these records are public.” The AGO’s November 8th response In the AGO’s November 8, 2024 response, the AGO claimed Exemption (f) of the Public Records Law to withhold the records in their entirety. 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).

Hanne Rush, Esq. SPR24/3243 Page 3 December 13, 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. The Supreme Judicial Court has stated that Exemption (f) aims at “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.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the AGO stated the following: ... your requests for body camera footage, mug shot and footage from booking as

Hanne Rush, Esq. SPR24/3243 Page 4 December 13, 2024 well as “[a]ll documentation and information – including police reports and video surveillance footage, police dash cam video, all police communication, any data taken from ...’s cellphone – related to the arrest of [an identified individual] in Springfield, MA on 9/21/2024” concern an open and ongoing AGO investigation that constitute investigatory records under G.L. c. 4, § 7, cl. 26(f), that are necessarily compiled out of the public view, the disclosure of which would reveal the nature and course of the investigation as well as confidential investigative strategies and techniques, and which would so prejudice the possibility of effective law enforcement, both currently and in the future, that such disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). In this instance, revealing any information from the records being withheld, premature to the conclusion of the investigation and any enforcement action, would compromise effective law enforcement by: 1) revealing the ongoing nature and course of our open investigation and divulge legal and other strategies and sources of information; 2) dissuading witnesses/private citizens who require assurances of confidentiality so that they will speak openly about matters under investigation without fear of intimidation, retaliation, or invasion of privacy (the “chilling effect”); and 3) affording an opportunity for interference with the ongoing investigation being conducted by law enforcement. See Bougas, 371 Mass. at 63. Further, to confirm or deny the existence of or provide any more specificity about such records would compromise the AGO’s law enforcement responsibilities to the same extent as disclosing the records themselves, and therefore would undermine the protections afforded by the public records exemptions. Accordingly, the AGO cannot provide you with a list of responsive records. For these reasons, the AGO maintains that it would not be in the collective public interest to disclose the investigatory records withheld under G.L. c. 4, § 7, cl. 26(f). To the extent that the AGO claims that disclosure would reveal the course of its ongoing investigation and chill the cooperation of witnesses/private citizens, the AGO may properly claim Exemption (f) of the Public Records Law to withhold the requested records. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed.

Hanne Rush, Esq. SPR24/3243 Page 5 December 13, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem