David Bae v. Middlesex District Attorney's Office (SPR 20243415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3415 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: I have received the petition of David M. Bae, 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, Lilly Cushman, Esq., also of Boyle Shaughnessy Law, 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/3240 Determination of the Supervisor of Records (December 13, 2024). In my December 13th Determination, I found that it was unclear how the Office could withhold responsive records, in their entirety, under Exemption (f), and ordered the Office to identify the records in its possession. The Office responded on December 19, 2024, denying responsive records under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Office’s response, Attorney Bae appealed, and this case, SPR24/3415, was opened as a result. Status of Requestor In his appeal petition, Attorney Bae states that “we are currently in the process of preparing for the potential that a civil lawsuit be filed against our clients.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. 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

Meagan Horn, Esq. SPR24/3415 Page 2 January 7, 2025 See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Bae’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 Attorney Bae’s appeal, he states: The denial letter does not offer any additional information about what records they intend to withhold under this exemption, once again failing to ‘prove with specificity’ that the claimed exemptions apply, as required by statute. See G.L. c. 66, § 10(c). We argue, once again, that the DAs response to our request is inadequate as it fails to prove that the cited exemptions apply. The DA’s second denial letter blatantly disregards the binding decision issued by your office directing the DA to identify the records, categories of records, or portions of records, it intends to withhold. As stated in our prior appeal, we are currently in the process of preparing for the potential that a civil lawsuit be filed against our clients. As such, the information withheld by the DA is extremely relevant and crucial to understanding why and how the incident occurred. Overall, the requested information is crucial in fully understanding the cause(s), nature, and extent of the accident that occurred on September 27, 2024.

Meagan Horn, Esq. SPR24/3415 Page 3 January 7, 2025 The Office’s December 19th Response In its December 19, 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 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

Meagan Horn, Esq. SPR24/3415 Page 4 January 7, 2025 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 19th response, the Office states: [T]his incident is the subject of an open and ongoing investigation…. Release of any documents from our investigatory file, even documents that may seem innocuous, could reveal the focus, nature, and direction of the investigation and provide important insight to the suspect or witnesses or may cause suspects to avoid apprehension, to manipulate others, or to destroy or alter physical evidence. Even releasing documents which have been redacted in an effort to exclude sensitive information would paint a picture of the nature, priority, scope, and extent of the investigation. Any disclosure could impede the pursuit of truth, facilitate the destruction of evidence, and prevent resolution of the case. Once information is disclosed, it would be impossible to claw back, as there would be no limit on sharing or publicizing it. Further, even release of information as to which materials are in the investigatory file may prejudice the investigation. Disclosure of what materials this Office has would reveal, by negative implication, sources and information this Office does not have, allowing a suspect to make efforts to circumvent investigatory efforts. Disclosure of this information would also provide a possible overview and context, potentially undermining the candor of witnesses and allowing suspects to alter their statements in a bid to mislead investigators. Finally, there is no such thing as “innocuous” information in a homicide investigation. As a practical matter, it is impossible to rank information in terms of its importance to solving the crime, and any piece of information may provide significant insights that may only be fully appreciated once an investigation is complete. Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Also, it is not clear how disclosure of the records would disclose confidential investigative techniques, procedures or sources of information. 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,”

Meagan Horn, Esq. SPR24/3415 Page 5 January 7, 2025 as required to withhold records under Exemption (f). The Office must explain whether the records can be redacted such that segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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). Additionally, it is unclear what records responsive to the request are being withheld from disclosure. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. G. L. c. 66, § 10 (b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Office must identify the records it possesses that are responsive to the request. Conclusion Accordingly, the Office is ordered to provide a response to Attorney Bae 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Lilly Cushman, Esq. David M. Bae, Esq.