Kavanaugh, Esq., Lisa v. Director, Office of Media Relations (SPR 20150273)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 1, 2015 SPRlS/273 Mr. Peter M. Geraghty, Esq. Staff Attorney Office of the Legal Advisor One Schroeder Plaza Boston, MA 02120-2014 Dear Office ofthe Legal Advisor: I have received the petition of Lisa M. Kavanaugh, Esq., Innocence Program Director, Committee for Public Counsel Services, appealing the response of the City of Boston Police Department (Department) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Kavanaugh requested four categories of records: 1. Records relating to investigation of a specific incident that occurred on January 18, 1985 in and around West Roxbury. 2. Any and all records relating to an investigation of an incident of armed robbery that occurred on October 7, 1983 in and around West Roxbury involving specifically identified victims. 3. Any and all records relating to an investigation of an incident of robbery that occurred on September 15, 1983 in and around West Roxbury involving a specifically identified individual. 4. Any and all records relating to an investigation of an incident oflarceny (jacket) that occurred on September 15, 1983 in or around Filene's Co., Washington Street Boston MA involving specifically identified complainants. With respect to request 4 it is my understanding the Department provided a copy the responsive incident report. Accordingly, I find this portion of Attorney Kavanaugh's appeal is closed. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Peter M. Geraghty, Esq. SPR15/273 Page Two July 1, 2015 Please note that the personal status of Attorney Kavanaugh or any client she represents does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In a response dated March 17, 2015 the Department denied Attorney Kavanaugh's request in its entirety, citing the privacy exemption to the Public Records Law as well as citing the Criminal Offender Record Information Act (CORI) as it operates under the statutory exemption to the Public Records Law. G. L c. 4, § 7, (26) (a), (c); G. L. c. 6, §§ 167-178. In this response the Department failed to meet its burden of specificity as required by the Public Records Law for the withholding of records. In a later response dated May 14, 2015 the Department clarified its position regarding the responsive records. With respect to requests 1 and 2 the Department explained that as the alleged victims have been identified the Department intends to withhold any responsive records that may exist pursuant to the privacy and investigatory exemptions to the Public Records Law. A review of Exemption (f) is warranted. Exemption (f), the so-called investigatory exemption, allows investigatory officials to withhold: 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)(±) The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). 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 Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. Accordingly, whereas the identity of the voluntary witnesses are known to the requester I find the Department acted properly in withholding records responsive to requests 1 and 2. I decline, therefore, to opine upon the Department's exemption claims from its March 17 letter.

Mr. Peter M. Geraghty, Esq. SPR15/273 Page Three June 23, 2015 With respect to request 3 the Department explained that it is unable to locate any responsive records. The Department did not state whether any retention period had expired for the maintenance and storage of any records responsive to request 3. This raises serious records management concerns. A custodian of records has an affirmative duty to maintain records made · or received in the normal course of his or her duties. G. L. c. 66, § 6, 17, and 17c; see also 950 C.M.R. 32.03 (definition of custodian). The Department's inability to account for all the documents in its custody and control remains an issue of concern regarding the security and management procedures for the Department's records. To assist the Department I will provide with this order a copy of our publication, the Municipal Records Management Manual (Manual). I find the Department has properly denied access to records responsive to requests 1 and 2 pursuant to Exemption (f) of the Public Records Law. However, I find the Department has not yet met its burden to determine whether any records exist responsive to request 3. Accordingly, the Department is hereby ordered to review its records, along with the Manual to determine whether it possesses any records responsive to request 3. The Department is further ordered, within ten (1 0) days, to provide a written response to Attorney Kavanaugh discussing the existence and the public status of any such records. If the Department maintains that any portion of any records located responsive to request 3 are exempt from disclosure it must, within ten (1 0) days provide to Attorney Kavanaugh a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. Enclosure cc: Lisa M. Kavanaugh, Esq.