Eoin Higgins v. Berkshire District Attorney's Office (SPR 20253201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2025 SPR25/3201 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 Appeals This request was the subject of previous appeals. See SPR25/3032 Determination of the Supervisor of Records (October 20, 2025) and SPR25/3058 Determination of the Supervisor of Records (October 27, 2025). In my October 27th determination, I found that the Office had not met its burden to withhold the responsive records under Exemptions (a), (c), or (f) of the Public Records Law. The Office responded on October 30, 2025. Unsatisfied with the Office’s response, Mr. Higgins petitioned this office and this appeal, SPR25/3201, 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 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. SPR25/3201 Page 2 November 14, 2025 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. 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 30th Response In its October 30, 2025 response, the Office expounded upon its prior response and argued that the responsive records should be withheld pursuant to Exemption (f) of the Public Records Law. Current Appeal In his appeal petition, Mr. Higgins stated, “[t]he DA’s office is saying nothing new here. They are still claiming a blanket exemption.” 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. at 290 n.18. Exemption (f) invites a “case-by-case

Joseph A. Pieropan, Esq. SPR25/3201 Page 3 November 14, 2025 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. In its October 30, 2025 response, the Office stated: …this Office’s investigation into this murder remains open. Disclosure of any materials related to the investigation at this time 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), exemption (f). The Berkshire District Attorney’s case file includes numerous police reports, an autopsy report, dozens of civilian witness statements, and other investigative documents generated by the Stockbridge Police Department, the Massachusetts State Police, and the Massachusetts State Police Crime Laboratory. Key factual

Joseph A. Pieropan, Esq. SPR25/3201 Page 4 November 14, 2025 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. Furthermore, the Massachusetts State Police investigation into the murder of [an identified individual] has been assisted by other law enforcement agencies conducting similar investigations outside the Commonwealth, and any disclosure of information will also compromise those agencies’ investigations… The disclosure of any of these records may result in disclosure of information relating to leads that we are currently pursuing… Furthermore, disclosure of any of these records may prejudice this Office’s investigation by tainting the memories of potential witnesses, impairing future interviews with potential suspects, causing the destruction or secreting of potential evidence, assisting potential suspects by informing them of information known to the Commonwealth, assisting suspects by revealing potential leads that investigators may follow, or impeding a potential defendant’s right to select a jury that is untainted by undue pre-trial publicity… This Office is also mindful of its ethical responsibility not to publish information that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Sup. Jud. Ct. Rule 3:07, R.P.C. Rule 3.6(a)… [W]e will not disclose any material from this investigation file until our investigation is complete. We owe it to the victim in this case and her family to exhaust all investigative avenues before we make any public disclosure that could impede a possible prosecution in this case… This twenty-year-old homicide has gained new momentum with the advances in forensic science and new leads are being actively investigated today. In Camera Inspection In order to analyze the legal basis of the Office’s current position, it is the finding of this office that an in camera review of an un-redacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Office. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that “[o]n doubtful questions an in camera inspection may be appropriate”). These records should, for example, demonstrate the extent to which the investigation remains active. 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. Massachusetts Comm’n Against Discrimination, 384 Mass. 198,

Joseph A. Pieropan, Esq. SPR25/3201 Page 5 November 14, 2025 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. Order Accordingly, the Office is ordered to provide this office with an un-redacted copy of a representative sample of responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Eoin Higgins