Russell, Esq., John v. Director, Office of Media Relations (SPR 20150398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords September 11, 2015 SPRlS/398 Lieutenant Michael P. McCarthy Boston Police Department Office of Media Relations One Schroeder Plaza Boston, MA 02120 Dear Lieutenant McCarthy: I have received the petition of John J. Russell, Esq. appealing the response of the Boston Police Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Russell requested a copy of records regarding an incident involving his client. In your response dated April22, 2015, you denied his request, claiming that the responsive record may be withheld pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 (c ); 950 C.M.R. 32.08(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 town 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lieutenant Michael P. McCarthy SPR15/398 Page Two September 11, 20 15 Purpose of request; identity of requester; other means of access to records In his appeal to this office Attorney Russell indicated that his client was the victim of a shooting that is the subject of the responsive records. Please note that the reason for which a requestor seeks access to or a copy of a public record 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). Accordingly, Attorney Russell's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Russell may wish to consider another means of seeking to obtain any existing responsive records. Nevertheless, it is appropriate to analyze the Department's claim that the responsive records, in their entirety, are exempt from disclosure under Exemption (f) of the Public Records Law. 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, 371 Mass. at 62. An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.18 (1979). There is no blanket exemption, however, for records created or maintained by investigative officials. Flatley, 419 Mass. at 512; WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990).

Lieutenant Michael P. McCarthy SPR15/398 Page Three September 11,2015 The Department's response states that Attorney Russell's request is for an investigation file whose case is listed as "Open" in the Department's files. The Department claims that "the information contained in this file is not subject to disclosure under the investigatory exemption of the public records law." Further, the Department states "a records custodian may withhold any information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials, and similarly, records custodians may withhold confidential investigative techniques indefinitely since their disclosure would prejudice future law enforcement efforts." The Department's response does not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain what type of records are contained in the responsive investigation file, e.g., police reports or witness statements. See Bougas, 371 Mass. at 65. In addition, the response does not explain how disclosure of these requested records could alert suspects to the activities of investigative officials, nor does it address whether these responsive records contain confidential investigative techniques. As a result, the Department has not demonstrated how disclosure 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 to withhold records under Exemption (f). As stated in Bougas, "[t]here is no blanket exemption provided for records kept by police depmiments nor does the investigatory materials exemption extend to every document that may be placed within what may be characterized as an investigatory file. There must be specific proof elicited that the documents sought are of a type for which an exemption has been provided." Bougas, 371 Mass. at 65-66. Therefore, the Department failed to meet its burden of explaining with specificity how the requested records, in their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (1 0) days, to provide Attorney Russell with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Russell 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.

Lieutenant Michael P. McCarthy SPRlS/398 Page Four September 11, 2015 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. n lliams Supervisor of Records cc: Mr. John J. Russell, Esq. cc: Ms. Nicole Taub, Esq.