Michelle Misiaszek v. Worcester County District Attorney's Office (SPR 20253088)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2025 SPR25/3088 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.” Prior Appeals This request was the subject of prior appeals. See SPR25/2543 Determination of the Supervisor of Records (September 10, 2025) and SPR25/2782 Determination of the Supervisor of Records (October 6, 2025). In my October 6th determination, I found that 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). The Office responded on October 15, 2025. Unsatisfied with the response, Ms. Misiaszek petitioned this office and this appeal, SPR25/3088, 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). 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. SPR25/3088 Page 2 November 4, 2025 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. Current appeal In her appeal, Ms. Misiaszek states, “[w]hile the DA’s office has now identified categories of records being withheld, I respectfully appeal their blanket denial. The investigatory exemption under G.L. c. 4, § 7(26)(f) does not justify wholesale withholding where segregable, non-sensitive information can be reasonably released.” The Office’s October 15th response In its October 15, 2025 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested 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 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

Mark Relation, Esq. SPR25/3088 Page 3 November 4, 2025 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 as follows: The withheld records encompass materials that fall into all three of these categories. The withheld records are a part of an “ongoing and active investigation.” Rafuse v. Stryker, 61 Mass. App. Ct. 595, 599 (although appellate decisions have not “addressed whether the mere passage of time should be considered in determining whether the exemption applies [appellate courts] have considered whether an investigation is ongoing and active.”) As such, the release of these records “could potentially alert suspects or targets to the activities of investigative officials.” Our office and our State Police Detective Unit continue to

Mark Relation, Esq. SPR25/3088 Page 4 November 4, 2025 obtain new information from the public relevant to the investigation via active tip lines and our own investigative efforts, pursue and test new leads and evidence, and reexamine and retest existing evidence as forensic science discovers new investigative techniques in an ongoing investigation that continues to this day. Indeed, most recently within the last three months our office met with our State Police Detective Unit reevaluate the state of the investigation and developed plans for further investigative efforts. Has identified a person of interest and is investigating new leads pertaining to this matter. The withheld records contain material that “reflect[s] internal techniques, procedures, or sources” that, if released, would prejudice this ongoing investigation and future law enforcement efforts. It would prejudice this ongoing investigation by “alert[ing] suspects or targets [as well as witnesses or any other persons actually or potentially involved in the matter under investigation] to the activities of investigative officials.” It would prejudice future law enforcement efforts by “caus[ing] a chilling effect, because this exemption [exemption (f)] allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation,” and release of the withheld materials would directly break that assurance of confidentiality in this case and materially undermine the legitimacy of that assurance in this case and future cases. The purposes of the investigatory exemption include “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 v. Chief of Police of Lexington, 371 Mass. 59, 62-63 (1976). Accordingly, release of the withheld records, even portions of those records, would frustrate all of these purposes and “would probably so prejudice the possibility of effective law enforcements that such disclosure would not be in the public interest.” Although the Office claims it has an open investigation regarding the requested records, 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 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). 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).

Mark Relation, Esq. SPR25/3088 Page 5 November 4, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michelle Misiaszek