Randy Jordan v. Department of State Police (SPR 20250102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2025 SPR25/0102 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 Randy Jordan, 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 December 8, 2024, Mr. Jordan requested the following records related to a specified incident: [1.] Dashcam footage from the patrol vehicle involved in the stop. [2.] Bodycam footage from [a named individual] and any other officers present during the stop. [3.] The official police report documenting the incident. [4.] Any disciplinary records or reports related to Trooper… including any actions, investigations, or sanctions resulting from complaints, allegations, or other misconduct. Prior Appeal This request was the subject of a prior appeal. See SPR24/3403 Determination of the Supervisor of Records (January 2, 2025). In my January 2nd determination, it was my understanding that the Department provided a further response on December 30, 2024, providing some records and citing Exemption (f) of the Public Records Law to withhold one additional record. Unsatisfied with the response, Mr. Jordan petitioned this office and this appeal, SPR25/0102, 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, § l0A(d); 950 C.M.R. 32.03(4). “Public 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 SPR25/0102 Page 2 January 24, 2025 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. The Department December 30th response In its December 30, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold a responsive record. Current Appeal In his appeal, Mr. Jordan states, “[t]he police report in this case does not fall under Exemption (f) because there is no ongoing investigation, nor would the release of the report compromise law enforcement techniques or reveal confidential information… Therefore, the police report from my traffic stop must be disclosed under the Public Records Law… The case is not investigatory in nature, and the records I seek are ordinary administrative documents created during the normal course of law enforcement duties.” 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

Allison Mondello SPR25/0102 Page 3 January 24, 2025 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 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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

Allison Mondello SPR25/0102 Page 4 January 24, 2025 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 Department stated the following: [t]he Department has identified the following potentially responsive record(s) in its possession, custody, or control: 2024-K9-27[.] Please note that the records [Mr. Jordan] seek[s] relate to an on-going and active criminal prosecution which is now pending in the Worcester Court. Because of the pendency of criminal charges, the records you seek are not subject to public disclosure pursuant to [Exemption (f)]… Based upon the forgoing and given the pendency of the criminal case, the Department denies the request. As you may know, the BWCVs is evidentiary in nature given that they relate to an on-going criminal case now pending in the Worcester District Court. Accordingly, until such time as the court matter has been resolved, the BWCVs are not subject to public disclosure pursuant to [Exemption (f)]. Moreover, these materials, if publicly disclosed, would prejudice any jury trial by: 1) revealing non-public information to the prospective jury pool, thereby narrowing the number of potential impartial jurors; and 2) releasing indirectly the names of potential witnesses, and any statements thereto, thereby exposing them to public inquiry, chilling their cooperation, and/or predetermining their testimony. For these reasons, it would not be in the collective public interest not [sic] to disclose these BWCVs at this time. In light of Mr. Jordan’s claim that there is no ongoing investigation, I find that the Department must clarify whether there is an active and ongoing investigation regarding the requested record. Further, it is unclear how the record can be withheld in its entirety. The Department must clarify whether segregable portions can be provided. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is additionally uncertain from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Jordan 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 the 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. Mr. Jordan may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison Mondello SPR25/0102 Page 5 January 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Randy Jordan Veronica Hanley