Hawkinson, John v. Cambridge, City of - Police Department (SPR 20150696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords December 14, 2015 SPRlS/696 Mr. Jeremy Warnick Cambridge Police Department 125 Sixth Street Cambridge, MA 02142 Dear Mr. Warnick: I have received the petition of John Hawkinson appealing the response of the Cambridge 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, Mr. Hawkinson requested a police report that was filed with the Cambridge District Court (Court) regarding a specifically identified individual's arrest. Consolidation of appeals The Department initially did not provide responsive records and directed Mr. Hawkinson to the Court to obtain the responsive record. Mr. Hawkinson appealed this response in a petition dated August 25, 2015. The Department provided Mr. Hawkinson with a more substantive response in an email dated December 8, 2015. Mr. Hawkinson also made this request to the Middlesex District Attorney's Office (DAO). The DAO provided multiple responses, including an email dated September 4, 2015 in which it denied access to responsive records under Exemption (f) of the Public Records Law and the Criminal Offender Record Information (CORI) statute. See G. L. c. 4, § 7(26)(f); G.L. c. 6, §§ 167-178. Mr. Hawkinson appealed the DAO's response in a petition dated September 8, 2015. Whereas the requests are identical and the responses are similar, I consolidated these matters into one appeal and will address the responses from the Department and the DAO in this Determination. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

11r. JeremyVVarnick SPR15/696 Page Two December 14, 2015 Provision of a responsive record In correspondence dated September 15, 2015, 11r. Hawkinson informed this office that he received a copy of a "Probable Cause Statement" from the Court. I understand the DAO directed the Court to provide 11r. Hawkinson with this document. However, 11r. Hawkinson states that the requested "Probable Cause Statement" does not constitute the "arrest report" which he still seeks. Request to the DAO The DAO's September 4 response to 11r. Hawkinson stated that the requested records may be withheld under Exemption (f) and the CORI statute. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.11.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 ofthe records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 (c ); see also District Attorney for the Norfolk Dist. v. Flatley, 41911ass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (f) Exemption (f), the "investigatory" exemption, 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 11ass 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, 3 78 11ass. 281, 290 n.18 (1979).

11r. JeremyVVarnick SPR15/696 Page Three December 14, 2015 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. In the September 4 response, Elizabeth Vlock stated the DAO is withholding responsive records because they directly relate "to an active and open criminal case and may be withheld from public disclosure pursuant to [E]xemption (f) ...." You also stated "[w]here this Office is in the process of preparing for trial, disclosure of any responsive records at this time is presumptively prejudicial to effective law enforcement and may reveal the Commonwealth's case prior to trial." In an email to a member of my staff dated September 22, 2015, Assistant District Attorney Kerry Kilcoyne provided additional information regarding the nature of the responsive records. Attorney Kilcoyne informed this office that the "Probable Cause Statement," which has been provided to Mr. Hawkinson, and the "arrest report" are two separate records. She indicated that the DAO is in custody of the "arrest report," however she claims it may be withheld under Exemption (f) for the reasons discussed in its September 4 response. I find the DAO has met its burden to withhold the "arrest report" under Exemption (f) because it pertains to an open and active criminal case that the DAO is preparing for. As such, I will not opine on the DAO's claim that the records are exempt from disclosure pursuant to the CORI statute. Request to the Department In the Department's December 8 response, you claim that any responsive documents other than the "Probable Cause Statement," which has been provided, may be withheld under Exemption (f) and the CORI statute. You explain that the responsive record is the subject of an active investigation and that since "the [DAO] is in the process of preparing for trial, disclosure of any responsive records at this time is presumptively prejudicial to effective law enforcement and may reveal the Commonwealth's case prior to trial." I find the Department has met its burden to withhold responsive records not already provided under Exemption (f) because they pertain to an open and active criminal case that the DAO is preparing for. As such, I will not opine on the Department's claim that the records are exempt from disclosure pursuant to the CORI statute. In various correspondence, Mr. Hawkinson suggested that the DAO and the Department may not successfully claim Exemption (f) to withhold records because it has already

Mr. Jeremy Warnick SPR15/696 Page Four December 14, 2015 disclosed them to the Court. However, even if certain records were submitted to the Court, the statutory exemptions to the Public Records Law are discretionary to the records custodian. See Bougas, 371 Mass. at 63 (stating that disclosure of police reports to a limited group of persons does not destroy an exemption to the Public Records Law). Conclusion Whereas Mr. Hawkinson received the "Probable Cause St tement" and the DAO and Department may permissibly withhold other responsive recor s, I will consider this appeal closed. s, cc: Mr. John Hawkinson Ms. Kerry Kilcoyne, Esq.