Michelle Misiaszek v. Worcester County District Attorney's Office (SPR 20252543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2025 SPR25/2543 Mark Relation, Esq. Assistant District Attorney Records Access Officer Worcester District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Michelle Misiaszek appealing the response of the Worcester District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On August 11, 2025, Ms. Misiaszek requested, “. . . any available, non-exempt records, documents, reports, photographs, or other materials related to the investigation of [an identified] case.” The Office provided a response on August 26, 2025 and August 27, 2025. Unsatisfied with the Office’s responses, Ms. Misiaszek petitioned this office and this appeal, SPR25/2543, 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. 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. 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

Mark Relation, Esq. SPR25/2543 Page 2 September 10, 2025 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, Ms. Misiaszek states, “[w]hile I understand that certain investigatory materials may be exempt from disclosure during a pending investigation, I believe that additional records or portions of records may exist that are not covered by the exemption, or that could be reasonably segregated and disclosed. For example, final reports, administrative correspondence, or other materials not directly related to ongoing investigative strategy may fall outside the exemption. Therefore, I respectfully request that your office review the District Attorney’s response and determine whether additional non-exempt records can be released, in whole or in part, consistent with the Public Records Law.” The Office’s August 26th and August 27th responses In its August 26, 2025 response, the Office provided the “public statements made by our office as well as a video clip relating to the case.” The Office cited Exemption (f) of the Public Records Law to withhold certain requested records. In its August 27, 2025 response, the Office confirmed the records are exempt and asserted, “[t]he remainder of the records in our possession related to the case are investigatory materials that are exempt from disclosure.” 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 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-

Mark Relation, Esq. SPR25/2543 Page 3 September 10, 2025 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. 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. 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. In its response the Office stated, “... this office cannot provide any further records related to this case at this time as there is a pending investigation and the remainder of the records in our possession would therefore be “investigatory materials” that are exempt from disclosure under the public records law. G.L. c. 4, § 7(26)(f). Once the investigation has been closed out, this office will review any materials related to your request and fulfill your request to the extent possible under the public records law.” Based on the Office’s response, I find the Office must identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record

Mark Relation, Esq. SPR25/2543 Page 4 September 10, 2025 under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Further, although the Office claims it has an open investigation regarding the requested records, it is unclear how the responsive records, in their entirety, can be withheld under Exemption (f). Also, the Office did not demonstrate how disclosure of any segregable portion of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Misiaszek with a response to the 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. Ms. Misiaszek may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michelle Misiaszek