Nina Schutzman v. Department of State Police (SPR 20243276)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2024 SPR24/3276 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 Nina Schutzman, of audiochuck Podcast Network, 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. Schutzman requested approximately 22 categories of records relating to a named individual “... who went missing in January 2007, was reported missing in May 2007, and whose remains were found in September 2007 in Rutland.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2847 Determination of the Supervisor of Records (October 30, 2024). In my October 30th determination, I found that the Department did not meet its burden to withhold records under Exemption (f). Subsequently, the Department responded on December 3, 2024. Unsatisfied with the Department’s response, Ms. Schutzman petitioned this office, and this appeal, SPR24/3276, 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. 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 SPR24/3276 Page 2 December 19, 2024 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 December 3rd Response In its December 3, 2024 response, the Department states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law. 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. 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

Allison Mondello SPR24/3276 Page 3 December 19, 2024 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 December 3rd response, under Exemption (f), the Department argues the following: Ms. Schutzman requested records relating to “Lineida Olivera, who went missing in January 2007, was reported missing in May 2007, and whose remains were found in September 2007 in Rutland”. The Department has located records that are responsive to Ms. Schutzman’s request, which include but are not limited to case reports, photographs, physical evidence, records from the Department’s Crime Laboratory and notes. The responsive records relate to the open investigation into Ms. Olivera’s death which is currently assigned to and being investigated by the Department’s Unresolved Case Unit. After consulting the Unresolved Case Unit about this case and this public records request, it is the Department’s position that disclosure of the requested records could prejudice the investigation. These records are therefore exempt from public disclosure pursuant to G.L. c. 4, §7, cl. 26 (f) which specifically exempts from public disclosure 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. The policy considerations underlying the exemption are well settled. See Bougas v. Chief of Police, 371 Mass. 59, 62 (1976)(“the prevention of the disclosure of confidential investigative techniques, procedures,

Allison Mondello SPR24/3276 Page 4 December 19, 2024 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”). Disclosure of records related to this open homicide investigation would jeopardize the Department’s investigation and thus would not be in the public interest. Furthermore, the Department must be circumspect in the level of factual detail it can provide in terms of further description and/or nature of the responsive records, as providing further detail about the contents of the case file of this active investigation may harm the Department’s investigation. In this case, although portions of the records may fall under Exemption (f), it remains unclear how the records can be withheld in their entirety. In particular, the Department has not explained why the records cannot be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Ms. Schutzman 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: Nina Schutzman