MSP troopers correspondence with AAG Caldwell re: Velis-Merrigan report (MSP)

Shawn Musgrave filed this request with the Massachusetts State Police of Massachusetts.
Tracking # SPR 17/737, 17891
Est. Completion None
Status
Partially Completed

Communications

From: Shawn Musgrave

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

All correspondence (including emails, memos and other communications) between state police officers (including but not limited to Det. Captain L'Italien and Capt. James Coughlin) and Assistant Attorney General Thomas Caldwell to discuss emails requested as part of the Velis-Merrigan investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak.

From the officers' January 2016 report: "On October 15, 2015 I met with Attorney Thomas Caldwell at the Office of the Attorney General in Boston. The purpose of this meeting was to receive the e-mails that had been requested as a part of this investigation. The e-mails were saved to a CD and were encrypted."

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Shawn Musgrave

From: MuckRock

Hello -

Please acknowledge receipt of this public records request.

Best,
Shawn

From: Section, MSP Legal (POL)

Your request was received.

Thank you

Massachusetts State Police Legal Section
General Headquarters
470 Worcester Road
Framingham, MA 01702

From: Migliaccio, Jenniffer (POL)

Good Afternoon Mr. Musgrave,

The Massachusetts Department of State Police (“Department”) has received your request for Department records and considers your request as a submission pursuant to G.L. c. 66, §10, the Massachusetts Public Records Law. As a courtesy this letter is to notify you that your request has been assigned to a member of the Department’s Legal Section for review. Upon completion of your request the Department will respond accordingly. Please be aware that:

• The Department may send you a good faith estimate for the cost of complying with your inquiry, since, pursuant to the Massachusetts Public Records Law, a records custodian may charge and recover a fee for the time he or she spends searching, reviewing, segregating, redacting, and re-filing a record. The Department may also apply a fee based on the number of pages copied and produced.

• Any response by the Department will be subject to the exemptions to the Public Records Law set forth in G.L. c. 4, sec. 7, cl. 26 (a)-(q).

• Under the Public Records Law, every requester is treated equally; therefore, even a person who is the subject of the record is not granted any greater access right than any other person.

Please note, I am researching this matter to determine the extent of responsive records. I will be in contact as soon as I have more information regarding any responsive material from them. Additionally, this request appears to be concerning the same subject matter and almost identical to your request # 25979-01923730, which was received on the same day. If agreeable, I plan on responding to these requests jointly.

Your attention to this matter is greatly appreciated. If you have any questions, please do not hesitate to contact me.

Thank you.

Jenniffer P. Migliaccio (O’Neil), Esq.
Staff Counsel
Department of State Police
State Police Headquarters
470 Worcester Road
Framingham, MA 01702
(508) 820-2348

From: Shawn Musgrave

Hi Jenniffer -

Thank you for getting back to me. I'd be fine with these two requests being processed jointly.

Please note that while the two requests are similar, one concerns correspondence between the troopers and AAG Caldwell, while the other concerns correspondence with Velis/Merrigan.

Please let me know if you have any questions or if I can clarify this request further.

Best,
Shawn

From: Migliaccio, Jenniffer (POL)

Good Afternoon,

The Department has received your request seeking communications between Captain L’Italien and Captain Coughlin with AAG Caldwell, Special AAG Peter Velis and Special AAG Thomas Merrigan. Please note the emails between Captain L’Italien and Captain Coughlin with the AAG’s (Attorney General’s Office) handling this investigation are not a matter of public record pursuant to the law enforcement investigative exemption and G.L. c. 4, §7, cl. 26 (f). The law enforcement investigative exemption is a well-established principle of law based on public policy. “It is a principle of law founded upon sound public policy and arising out of the creation and establishment of constitutional government that communications made to a district attorney in order to secure the enforcement of law are privileged and confidential in the sense that they cannot be revealed at the instance of private parties in aid of actions at law.” Attorney General v. Tufts, 239 Mass. 458, 490-491 (1921). Moreover, federal courts also apply a federal law enforcement privilege. See Dellwood Farms v. Cargill, Inc., 128 F.3d 1122 (7th Cir. 1997)(recognizing federal law enforcement investigatory privilege). “The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement. [I]t serves to preserve the integrity of techniques and confidentiality sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations.” Tuit v. Henry, 181 F.R.D. 175, 176-77 (D.D.C. July 31, 1998), aff’d Tuite v. Henry, 203 F.3d 53 (D.D.Cir.1999). G.L. c. 4, §7, cl. 26 (f) exempts from public disclosure “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.” Moreover, G. L. c. 4, §7, cl. 26 (f) recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Bougas v. Chief of Police, 371 Mass. 59, 62-63 (1976). The disclosure of communications between an investigator and the assistant attorney generals handling an investigation would detract from effective law enforcement and would prejudice investigative efforts. There is an interest in preserving the integrity of investigations and communications between law enforcement and the AG’s office regarding the investigative process. Disclosure of investigative communications would compromise effective law enforcement. Accordingly, the responsive communications are being withheld from disclosure.

If you object to the Department’s response to your request or any portion of the same, you may appeal the Department’s response in accordance with Massachusetts General Laws, Chapter 66, §10(b) and 950 CMR 32.00.

Thank you for your attention to this matter.

Jenniffer P. Migliaccio (O’Neil), Esq.
Staff Counsel
Department of State Police
State Police Headquarters
470 Worcester Road
Framingham, MA 01702
(508) 820-2348

From: Shawn Musgrave

To Whom It May Concern:

I hereby appeal the January 2017 rejection of my request under the Massachusetts public records law to the Massachusetts Department of State Police. As detailed below, the agency inappropriately applied the law enforcement exemption in blanket fashion to reject my request in its entirety, rather than applying them in the narrow fashion as required by the state's public records law.

In June 2016, I submitted two separate (but similar) requests to the Department of State Police. In denying these requests, the agency treated them as a single request for records. These requests sought, in turn:

1: "All correspondence (including emails, memos and other communications) between state police officers (including but not limited to Det. Captain L'Italien and Capt. James Coughlin) and Assistant Attorney General Thomas Caldwell to discuss emails requested as part of the Velis-Merrigan investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak."

2: "All correspondence (including emails, memos and other communications) between state police officers (including but not limited to Det. Captain L'Italien and Capt. James Coughlin) and retired judges Peter Velis and Thomas Merrigan regarding their investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak."

As a preliminary matter, the agency's rejection responds solely to portions of my request that refer to email communications. In her response, MSP counsel Migliaccio wrote, "Please note the emails between Captain L’Italien and Captain Coughlin with the AAG’s (Attorney General’s Office) handling this investigation are not a matter of public record pursuant to the law enforcement investigative exemption and G.L. c. 4, §7, cl. 26 (f)." As clearly stated in the text of my requests, I seek correspondence regarding the Velis-Merrigan misconduct investigation. As stated in my requests, potentially responsive records include — but are not limited to — emails. The agency thus failed to respond to my request in its entirety.

In denying my requests as to emails between the indicated MSP employees and certain employees of the Massachusetts Attorney General's Office, the Department of State Police inappropriately applies the law enforcement exemption to all potentially responsive documents. Such a blanket denial fails to align with the agency's obligations under the public records law to apply exemptions narrowly. As the Secretary of the Commonwealth's guide to the state's public records law (January 2017 version available here: https://www.sec.state.ma.us/pre/prepdf/guide.pdf) summarizes:

"The statutory definition of 'public records' contains exemptions providing the basis for withholding records completely or in part. The exemptions are strictly and narrowly construed. Where exempt information is intertwined with non-exempt information, the non-exempt portions are subject to disclosure once the exempt portions are deleted."

The denial of my requests does not reflect any attempt on the part of the agency to disentangle potentially exempt communications from those that are clearly subject to disclosure. Rather, Ms. Migliaccio indicates that all requested emails "are being withheld from disclosure." While there may be some portions of the relevant communications that are exempt under the law enforcement investigation (see below for my rebuttal on that front), there are also likely many portions to which that exemption does not apply whatsoever. The agency has failed to identify non-exempt portions that are subject to disclosure.

Finally, the agency incorrectly invokes the law enforcement exemption, which exemptions from disclosure: "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." The requested communications are undoubtedly relevant to an investigation, and portions may be exempt under exemption (f).

However, the agency inappropriately applies the exemption in blanket fashion. "There is an interest in preserving the integrity of investigations and communications between law enforcement and the AG’s office regarding the investigative process," wrote Ms. Migliaccio. Similar to the detriments noted above, Ms. Migliaccio has failed to explain how all such communications are covered under exemption (f). As the Secretary of the Commonwealth's guide explains, "Exemption (f) does not, however, create a blanket exemption for all records that investigative officials create or maintain. A records custodian must demonstrate a prejudice to investigative efforts in order to withhold requested materials."

The agency has failed to demonstrate such a prejudice with specificity. The fact that the requested records are created and maintained by law enforcement officers and constitute communications between an investigator and the relevant assistant attorneys general is insufficient to demonstrate any such prejudice.

The relevant investigation is closed and much of its concluding documentation available to the public. The Department of State Police makes no claim that any confidential investigative techniques might be disclosed in any portion of the requested documents.

Critically, this investigation was initiated out of the need for a more thorough assessment of the state's conduct in the prosecution of Sonja Farak. The state's top courts have recognized this need. In this spirit, I ask that you remand this request back to the Department of State Police for good faith search and provision of responsive records.

Best,
Shawn Musgrave

From: Sullivan, Kellie (SEC)

Good afternoon,

Thank you, received and acknowledged.

Kellie Sullivan
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
617-727-2832

From: Roostaie, Gabriella (SEC)

Hi Mr. Musgrave,

Please see attached.

From: Sullivan, Kellie (SEC)

Good afternoon,

Please find attached this office's letter of determination in the matter of your appeal with the Department of State Police, numbered SPR 17/737.

Thank you,

Kellie Sullivan
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
617-727-2832

From: Massachusetts State Police

Good Afternoon,

Per the Supervisor of Records’ most recent letter regarding SPR17-1310 (previously SPR17/942), the Department is providing you with a subsequent response to your request seeking communications between Captain L’Italien and Captain Coughlin with AAG Caldwell, Special AAG Peter Velis and Special AAG Thomas Merrigan regarding their investigation into alleged prosecutorial misconduct in handling evidence from Sonja Farak. As stated previously, correspondences between Captain L’Italien and Captain Coughlin with the AAG’s (Merrigan, Velis and Caldwell) regarding this investigation are not a matter of public record pursuant to both the law enforcement investigative privilege and G.L. c. 4, §7, cl. 26 (f). As you know, the Department did conduct a search for correspondences between these individuals with the result of eighteen (18) responsive emails. The Department reiterates its position that such correspondences are not subject to public disclosure. The Department has redacted the responsive emails pursuant to the cited privilege and exemption. Please see the attached responsive records.

The Department reiterates the previously cited case law establishing the law enforcement investigative privilege. The law enforcement investigative privilege is a well-established principle of law based on public policy. “It is a principle of law founded upon sound public policy and arising out of the creation and establishment of constitutional government that communications made to a district attorney in order to secure the enforcement of law are privileged and confidential in the sense that they cannot be revealed at the instance of private parties in aid of actions at law.” Attorney General v. Tufts, 239 Mass. 458, 490-491 (1921). See also Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007) (recognizing the importance of well-established privileges and that the public records law was not intended to deprive government agencies of such privileges). The decision in Suffolk Construction Co., Inc. v. Division of Capital Asset Management is applicable to this matter because the law enforcement privilege is a well-established principle of law that protects and preserves the integrity of law enforcement efforts. The law enforcement privilege is not forfeited simple because an individual submits a public records request. It is against public policy to afford individuals access to documents that are otherwise privileged communications. See Suffolk Construction Co., Inc. v. Division of Capital Asset Management (“Nothing in the language or history of the public records law, or in our prior decisions, leads us to conclude that the Legislature intended the public records law to abrogate the privilege for those subject to the statute.”) Moreover, federal courts also apply a federal law enforcement privilege. See Dellwood Farms v. Cargill, Inc., 128 F.3d 1122 (7th Cir. 1997)(recognizing federal law enforcement investigatory privilege). “The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement. [I]t serves to preserve the integrity of techniques and confidentiality sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations.” Tuit v. Henry, 181 F.R.D. 175, 176-77 (D.D.C. July 31, 1998), aff’d Tuite v. Henry, 203 F.3d 53 (D.D.Cir.1999).

In this case G.L. c. 4, §7, cl. 26 (f) is also applicable. As you know, G.L. c. 4, §7, cl. 26 (f) from public disclosure “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.” Moreover, G. L. c. 4, §7, cl. 26 (f) recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Bougas v. Chief of Police, 371 Mass. 59, 62-63 (1976). The disclosure of communications between the assigned investigators and the assistant attorney generals handling an investigation would detract from effective law enforcement and would prejudice investigative efforts. There is an interest in preserving the integrity of investigations and communications between law enforcement and any prosecutorial agency. Disclosure of investigative communications between detectives and prosecutors would compromise effective law enforcement since exposure of such information would hinder the investigative process. It is in the public interest to prevent such disclosure in order to promote candid discussions between investigators and prosecutors without the risk of such correspondences being made public. Accordingly, the records have been redacted pursuant to the foregoing.

If you object to the Department’s response to your request or any portion of the same, you may appeal the Department’s response in accordance with Massachusetts General Laws, Chapter 66, §10(b) and 950 CMR 32.00.

Thank you for your attention to this matter.

Jenniffer P. Migliaccio (O’Neil), Esq.
Staff Counsel
Department of State Police
State Police Headquarters
470 Worcester Road
Framingham, MA 01702
(508) 820-2348

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