Scott J. Burke v. Department of State Police (SPR 20251244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2025 SPR25/1244 Allison Mondello Public Records Manager Massachusetts State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Attorney Scott J. Burke 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 January 31, 2025, Attorney Burke requested: [C]opies of all documents in the possession or control of the Massachusetts State Police related to the July 28, 2024 accident involving [identified individuals]. These documents include, but are not limited to, the following: [1] The logs, runsheets, call recordings, and other documents and materials generated as a result of, or in connection with the incident. [2] All photographs taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident. [3] All reports, citations, notes, memorandum, correspondence, email or other paperwork and/or documents generated or otherwise obtained during, in connection with, and/or as a result of the incident. [4] All evidence taken from the scene relative to the incident. [5] All statements taken from any person associated with the incident. [6] All 911 calls, transcripts and/or tapes generated as a result of, or in connection of the incident. [7] All video taken from the scene relative to the incident, including but not 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 SPR25/1244 Page 2 May 19, 2025 limited to, dash cam footage from the police car, body cam footage from the police officer involved, body cam footage from any responding officers, and traffic surveillance video. [8] All toxicology reports and/or blood alcohol reports obtained from anyone involved in the incident. [9] If for some reason not included in 1-8 above, any documents, photograph, sketch or other material generated or otherwise obtained during, in connection with, and/or as a result of the incident. Previous Appeal This request was the subject of a previous appeal. See SPR25/0744 Determination of the Supervisor of Records (March 27, 2025). In my March 27th determination, I ordered the Department to provide Attorney Burke with a response to his request. Subsequently, the Department responded on April 16, 2025. Unsatisfied with the Department’s response, Attorney Burke petitioned this office, and this appeal, SPR25/1244, 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. 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 his appeal petition, Attorney Burke states, “[t]he Department has . . . refused to furnish these identified materials to my office for inspection, citing an exemption under G.L. c. 4, §7, cl. 26(f) to the Massachusetts Public Records Law, M.G.L. Ch. 66, § 10.” Regarding the Department’s claims under Exemption (f), Attorney Burke asserts, “[t]he Department has not

Allison Mondello SPR25/1244 Page 3 May 19, 2025 provided a sufficient cause for withholding what should otherwise be publicly available information.” Status of the Requestor; Reason for the Request 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. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Burke’s status as a representative to an individual identified in the records shall have no bearing on the public nature of the record. The Department’s April 16th Response In its April 16, 2025 response, the Department identified five records responsive to Attorney Burke’s request and cited Exemption (f) of the Public Records Law to withhold the records in their 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 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, 371 Mass at 62. 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. 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

Allison Mondello SPR25/1244 Page 4 May 19, 2025 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: • 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. Under Exemption (f), the Department stated the following in its April 16, 2025 response: After a diligent search of its records systems, the Department has identified the following responsive records: • 2024-0A2-005745; Administrative Journal Extract • 2024-0A2-005745; Motor Vehicle Crash Report • Email Correspondence • Body-Worn Camera Video • 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) you seek are not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f) . . . . Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts.

Allison Mondello SPR25/1244 Page 5 May 19, 2025 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. . . . 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 you re-submit your request at a later time. Although the Department claims in its response that it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Further, the Department did not demonstrate how disclosure of any 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 these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Burke with a response to his 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. Attorney Burke may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Attorney Scott J. Burke