Joseph Borsellino v. Department of State Police (SPR 20250151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2025 SPR25/0151 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 Attorney Joseph Borsellino, 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 July 12, 2024, Attorney Borsellino requested the following regarding a specified incident: [1] All investigative and incident reports and Crash Reports; [2] All video footage of the incident taken by any street or other camera footage; [3] All photographs taken by the police of the vehicles and scene; [4] All citations issued by the MSP; [5] All contact information and statements of witnesses; [6] All 911 calls and/or tapes of calls pertaining to the incident; [7] All logs and journals of all calls involving the MSP related to the event; and, [8] All body or dash cam video of the incident and/or the scene[.] Prior Appeals This request was the subject of prior appeals. See SPR24/2592 Determination of the Supervisor of Records (September 24, 2024) and SPR24/3156 Determination of the Supervisor of Records (December 3, 2024). In my December 3rd determination, I found that the Department had not met its burden to withhold records under Exemption (f) of the Public Records Law. The Department responded on January 7, 2025, further citing Exemption (f) of the Public Records Law to withhold records. Unsatisfied with the response, Attorney Borsellino petitioned this office and this appeal, SPR25/0151, 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

Allison Mondello SPR25/0151 Page 2 January 29, 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, § l0A(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. The Department’s January 7th response In its January 7, 2025 response, the Department cited Exemption (f) of the Public Records Law to withhold records responsive to the request. Current Appeal In his appeal, Attorney Borsellino states the following: The MSP’s “response” attached nothing but a cut and paste of the same “response”… The MSP provided no explanation… and it did not provide supporting information to support its denial. And it did not identify a single document created after the routine Crash Report now more than two hundred (200) days after the car accident. This matter involves a routine auto accident. It’s only distinguishing feature is that one of the drivers was an MSP Trooper who made a U-turn into a civilian who had the right of way… 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

Allison Mondello SPR25/0151 Page 3 January 29, 2024 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 289-290. Under Exemption (f), the Department stated the following: After a diligent search of its records systems, the Department has identified the following responsive records: [1.] Motor Vehicle Crash Report; 2024-0H7-004690 [2.] Administrative Journal Extract; 2024-0H7-004690 [3.] Body-Worn Camera/Cruiser-Mounted Camera Footage Please be advised that, according to information provided to this office, this incident remains the subject of an ongoing investigation. In light of the pending investigation, the record(s) [Attorney Borsellino] seek[s] are not subject to public disclosure at this time pursuant to [Exemption (f)]… Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. The Department is compelled to conduct a thorough and objective investigation of the events into this incident. There is an interest in preserving the integrity of the investigation and any potential subsequent prosecution. It is not in the public’s interest to release this information, as such release could potentially taint any potential jury pool if the investigation results in a criminal prosecution. Therefore, the records [Attorney Borsellino] seek[s] are not available currently pursuant to [Exemption (f)]. Based upon the forgoing and given the pendency of the investigation, the Department denies the request. There is no date certain by which the investigation will be complete, I recommend [Attorney Borsellino] re-submit [his] request at a later time.

Allison Mondello SPR25/0151 Page 4 January 29, 2024 In camera inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Department to withhold the responsive records, the Department must provide this office with an un-redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Borsellino, Esq.