Dusty Christensen v. Hampden County District Attorney's Office (SPR 20252577)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2025 SPR25/2577 Sean P. Buxton, Esq. Assistant District Attorney Hampden District Attorney’s Office 1500 Main Street Springfield, MA 01115 Dear Attorney Buxton: I have received the petition of Dusty Christensen, of The Shoestring, appealing the response of the Hampden District Attorney’s Office (Office/HDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 30, 2025 Mr. Christensen requested “[a]ny document tracking the docket numbers of any indictments that the Hampden DA’s Office has brought, from Jan.1, 2022 to present, that have resulted from wiretap evidence.” The Office responded on July 30, 2025, and assigned tracking number P000415-073025 to this request. Unsatisfied with the Office’s response, Mr. Christensen petitioned this office, and this appeal, SPR25/2577, 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

Sean P. Buxton, Esq. SPR25/2577 Page 2 September 12, 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. The Office’s August 13th Response In its August 13, 2025 response, the Office cites Exemptions (e) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(e), (f). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its response, under Exemption (e), the Office argues the following: The HDAO respectfully denies your public record request in its entirety at this time pursuant to G.L. c. 4, § 7(26) (e), because the only records responsive to this request are “notebooks or other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” Records that are work-related, personal to an employee, and not shared with anyone else in the department are exempt from disclosure. See “A Guide to the Massachusetts Public Records Law,” (Jan. 2017).

Sean P. Buxton, Esq. SPR25/2577 Page 3 September 12, 2025 . . . The HDAO does not maintain any records responsive to your request as part of its files. A record holder’s duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 66, § 10(a)(ii). The public records law does not require an agency to create a record in response to a request. Based on the information provided in the Office’s August 13th response, although the Office has explained that the responsive records are not maintained as part of a government file, I find it is unclear from the Office’s response how the responsive records constitute “notebooks and other materials” as contemplated by the statute. See G. L. c. 4, § 7(26)(e). Further, it is unclear from the information provided in the Office’s response whether the responsive records were shared with others. The Department must clarify these matters. 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- 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. In its response, under Exemption (f), the Office argues the following: Additionally, many of the records sought are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(f), because the investigations in those matters remain open. The release of the requested documents would prejudice the Commonwealth’s investigation and any potential prosecution such that disclosure at this time is not in the public interest. The purpose of the G.L. c. 4, § 7(26)(f) exemption is in part to avoid the “premature disclosure of the Commonwealth’s case prior to trial.” Bougas v. Chief of Police, 371 Mass. 59, 62 (1976).

Sean P. Buxton, Esq. SPR25/2577 Page 4 September 12, 2025 Based on the Office’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Office states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Office did not demonstrate how disclosure 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). Additionally, it is unclear from the Office’s August 13th response which specific records the Office intends to withhold under Exemptions (e) and (f). The Office must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). It is further uncertain why the records must be withheld in their entirety. The Office must explain whether the records can be redacted so that segregable portions can be provided. 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). Conclusion Accordingly, the Office is ordered to provide Mr. Christensen 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. Mr. Christensen may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dusty Christensen