Shaffer, Maya v. Boston, City of - Police Department (SPR 20150557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPR15/557 Lieutenant Michael P. McCarthy Director, Office of Media Relations Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Lieutenant McCarthy: I have received the petition of Maya Shaffer, on behalf of the Baystate Examiner, appealing the response of the Boston Police Department (Department) to her request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested a video and emails related to a shooting in Roxbury, Massachusetts. This request was the subject of a previous request. See SPR15/258 Determination of the Supervisor of Records (June 24, 2015). This appeal was based upon the Department's failure to respond to Ms. Shaffer's request. Subsequent to the intervention of a member of my staff, the Department provided a response to this request on June 16, 2015. Ms. Shaffer appealed the Department's June 16 response. The Department's June 16 response Request for video In your June 16 response, you indicate the "Department is not in custody, care, or control ofthe record you have requested. All video evidence is in the custody, care, and control of the Suffolk County District Attorney's Office .... " As such, [the Department] has no records responsive to this part of your request." Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lieutenant Michael P. McCarthy SPR15/557 Page Two December 7, 20 15 Whereas the Department has no records responsive to the request for the video, I will consider this portion of the appeal closed. Request for emails Ms. Shaffer's request for emails was specifically for "[t]he first page of the most recent, non-exempt from the public records law, email sent by each officer directly involved in the shooting." You claim that these records are exempt from disclosure pursuant to 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). You state "[t]he release of documents you request would identify witnesses in an ongoing Suffolk County District Attorney['s] [O]ffice investigation. As such, the release ofemails would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." You informed a member of my staff that this investigation remains ongoing. This response explains how disclosure of these records would identify witnesses and compromise activities of investigative officials. Therefore, I find the Department has met its burden to explain 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). Conclusion Whereas the Department has no records responsive to Ms. Shaffer's request for the video and the Department properly withheld responsive emails, I will consider this appeal closed.

Lieutenant Michael P. McCarthy SPR15/557 Page Three December 7, 2015 a Supervisor of Records cc: Ms. Maya Shaffer