Eoin Higgins v. Berkshire District Attorney's Office (SPR 20253058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3058 Joseph A. Pieropan, Esq. Assistant District Attorney Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Eoin Higgins appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 12, 2025, Mr. Higgins requested: …any and all materials related to the murder of [an identified individual] on May 1, 2005. Including but not limited to: - Contemporaneous police reports and investigation - Ongoing investigation - List of suspects - Murder weapon and site photos and analysis[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/3032 Determination of the Supervisor of Records (October 20, 2025). In My October 20th determination, I closed SPR25/3032 in light of the Office providing a response on October 20, 2025. Unsatisfied with the Office’s response, Mr. Higgins petitioned this office and this appeal, SPR25/3058, 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 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

Joseph A. Pieropan, Esq. SPR25/3058 Page 2 October 27, 2025 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. 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 October 20th Response In its October 20, 2025 response, the Office cited Exemptions (a), (c), and (f) of the Public Records Law to withhold the responsive records. Current Appeal In his appeal petition, Mr. Higgins stated, “[t]his is not a substantive reply, nor is it offering any actual reason why a blanket denial is being issued.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Joseph A. Pieropan, Esq. SPR25/3058 Page 3 October 27, 2025 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its October 20, 2025 response, the Office cited G. L. c. 277 § 63, which concerns limitations of criminal prosecutions, and provides in pertinent part, “[a]n indictment for murder may be found at any time after death of the person alleged to have been murdered…” Under Exemption (a), the Office stated: …this public records request… requires disclosure of information in an on-going homicide investigation… The Berkshire District Attorney is statutorily obligated to direct, control and coordinate the law enforcement investigation of homicides committed in his jurisdiction… Although the Office cites G. L. c. 277, § 63, it is unclear from the Office’s response how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, I find the Office has not met its burden to withhold the responsive records under Exemption (a) of the Public Records Law. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1)

Joseph A. Pieropan, Esq. SPR25/3058 Page 4 October 27, 2025 whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Office stated, “…this public records request… requires production of confidential, private or privileged materials.” Based on the Office’s response, it is unclear how the Office may withhold the responsive records under Exemption (c). Specifically, the Office has not demonstrated how the withheld records contain intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally unclear whether this information is available from other sources. Id. The Office must also provide information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office 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

Joseph A. Pieropan, Esq. SPR25/3058 Page 5 October 27, 2025 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. at 290 n.18. 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. Under Exemption (f), the Office stated: The death of [an identified individual] was ruled a homicide... To date, no individual has been identified, arrested, indicted or prosecuted for her death. Her homicide remains unsolved… [T]his public records request… does not contain a

Joseph A. Pieropan, Esq. SPR25/3058 Page 6 October 27, 2025 court order for production or waiver or confidentiality agreement by any complainant, victim, witness, person of interest, “suspect,” criminal defendant, or other party, named or interested in this matter…The Office receives investigatory materials from law enforcement agencies and others involved in the report of a criminal incident to conduct the prosecution of criminal complaints and indictments… The Berkshire District Attorney’s case file includes an autopsy report, civilian witness statements, and investigative documents… Key factual details in, or more recent actions taken upon review of, these documents have not been released to the public to ensure the integrity of the information and the on-going investigation… [T]he Massachusetts State Police investigation… has been assisted by other law enforcement agencies… and any disclosure of information will also compromise those agencies’ investigations… Although the Office states that the responsive records concern an ongoing investigation, the Office has not established how the responsive records may be withheld in their entirety under Exemption (f). Although the identifying information of voluntary witnesses and complainants may be withheld, it is unclear how all of the withheld records constitute confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. The Office has also not demonstrated 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). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Higgins 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. Higgins may 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: Eoin Higgins