Scott J. Burke v. Department of State Police (SPR 20251826)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2025 SPR25/1826 Allison Mondello Public Records Manager Massachusetts Department of 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 SPR25/1826 Page 2 July 9, 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 Appeals This request was the subject of previous appeals. See SPR25/0744 Determination of the Supervisor of Records (March 27, 2025) and SPR25/1244 Determination of the Supervisor of Records (May 19, 2025). In my May 19th determination, I ordered the Department to clarify its claims for withholding responsive records under Exemption (f) of the Public Records Law. Specifically, I noted that although the Department claimed 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). Subsequently, the Department responded on June 24, 2025. Unsatisfied with the Department’s response, Attorney Burke petitioned this office, and this appeal, SPR25/1826, 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.

Allison Mondello SPR25/1826 Page 3 July 9, 2025 Current Appeal In his appeal petition, Attorney Burke states the following: On June 24, 2025, we received the Massachusetts State Police’s formal response to our continued request and appeal regarding its refusal to produce certain identified records. These records are being withheld under the claimed investigative exemption. However, in the Secretary of State’s most recent ruling, the MSP was explicitly ordered to provide a detailed explanation justifying the withholding of the records—specifically, the status of the investigation and the rationale for continued non-disclosure. Rather than complying with that directive, the MSP merely repeated its prior position that the records are exempt from disclosure, offering no further explanation. This response fails to comply with the Secretary of State’s May 19 Order and represents yet another refusal by the MSP to abide by its obligations under that ruling. The Department’s June 24th Response In its previous April 16, 2025 response, the Department identified five responsive records and cited Exemption (f) of the Public Records Law to withhold the records in their entirety. In its June 24, 2025 response, a representative of the Department stated, “. . . the department maintains its initial position, as communicated on April 16, 2025, to withhold the requested records due to an ongoing investigation. The Department representative further advised, “[a]s the investigation remains active, the records cannot be released at this time. There is no date certain by which the investigation will be complete, I recommend you re-submit your request at a later time.” The Department’s June 24th response contained no new arguments nor additional information that would affect the application of Exemption (f) to the responsive records. 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 SPR25/1826 Page 4 July 9, 2025 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. In camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claims made by the Department to withhold the responsive records, the Department must provide this office with un-redacted copies of the responsive 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. Conclusion Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Allison Mondello SPR25/1826 Page 5 July 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Attorney Scott J. Burke