Karissa Flynn v. Department of State Police (SPR 20251037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2025 SPR25/1037 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Karissa Flynn, Esq. 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 April 11, 2025, Attorney Flynn requested: Body worn camera video and cruiser dash mounted camera video associated with MSP case # 2024-ATrp-1705, including but not limited to BWC from [four identified individuals] and CMC from cruiser #420 depicting the motor vehicle stop involving [an identified individual] on Furnace Brook Parkway in Quincy on October 26, 2024, at approximately 5:12pm. The Department responded on April 11, 2025, identifying a responsive record and withholding it in its entirety under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Attorney Flynn appealed, and this case, SPR25/1037, was opened as a result. Subsequently, the Department emailed this office with a further response on April 18, 2025. 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). 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 SPR25/1037 Page 2 April 24, 2025 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. Att’y 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 to this office, Attorney Flynn states: As an initial matter, the cases and opinions cited by MSP in support of its denial reference investigatory materials in ongoing investigations and prosecutions, not just pending criminal prosecutions. This case does not involve any active investigation. The video requested here depicts a motor vehicle stop conducted on October 26, 2024, at the conclusion of which police issued a citation to [an identified individual] for motor vehicle offenses. It cannot reasonably be said that there was any ongoing investigation after that point. Further, the stop was the subject of a narrative police report purportedly detailing the anticipated contents of the requested video. The narrative police report was filed in Quincy District Court in support of MSP’s application for criminal complaint. The video requested here would depict a motor vehicle stop that occurred in public and MSP has provided no indication whatsoever that disclosure of this video would reveal anything confidential about the investigation. MSP’s denial is not sufficient to meet its burden to ‘prove with specificity the exemption which applies.’ Bougas, 371 Mass. at 61. Simply stating that there is an ‘on-going and active criminal prosecution.’ The Department’s April 11th Response In its April 11, 2025 response, the Department states it “has identified the following potentially responsive record(s) in its possession, custody, or control: 2024-ATrp-1705[.]” Additionally, the Department cited Exemption (f) to withhold the record in its 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

Allison Mondello SPR25/1037 Page 3 April 24, 2025 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 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.

Allison Mondello SPR25/1037 Page 4 April 24, 2025 In its April 11th response, the Department states: Please note that the records you seek relate to an on-going and active criminal prosecution which is now pending in Court. Because of the pendency of criminal charges, the records you seek are not subject to 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 Department maintains that the investigative records at issue exclusively contain, or have interwoven throughout, information that, if disclosed, would prejudice any criminal trial in this matter by: 1) revealing non public information to the prospective jury pool, thereby narrowing the number of potential impartial jurors; 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; and 3) providing a roadmap to the prosecutions legal strategies, thereby giving the defense an unfair advantage. For these reasons, it would not be in the collective public interest not to disclose these records in their entirety at this time. In its April 18, 2025 email to this office, the Department states: The Massachusetts Department of State Police (‘Department’) received your request seeking the body worn camera video. As you may know, the BWCVs is evidentiary in nature given that they relate to an on-going criminal case now pending in court. Accordingly, until such time as the court matter has been resolved, the BWCVs are not subject to public disclosure pursuant to G.L. c. 4, § 7, cl. 26(f)…. Alternatively, since this is an ongoing litigation, we recommend you obtain these documents through the normal discovery process. Although the Department states that the records pertain to an active investigation, it is unclear 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. Further, the Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See 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). The Department must clarify this matter.

Allison Mondello SPR25/1037 Page 5 April 24, 2025 Conclusion Accordingly, the Department is ordered to provide Attorney Flynn with a response to her request, provided 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 D. Cushman, Esq.