Sarvis, Robert v. Nantucket, Town of - Police Department (SPR 20150812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams December 22, 2015 Supervisor ofR ecords SPRlS/812 Mr. Charles Gibson Deputy Chief of Police Town of Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554-2804 Dear Deputy Chief Gibson: I have received the petition of Robert Sarvis appealing the response of Town of Nantucket Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Sarvis requested copies of all complaints, including tape recordings of phone calls relative to the complaint, made by a specifically named individual. In a written response the Department denied his request in its entirety citing to Exemption (c), the Public Records Law privacy exemption. In its response the Department also recited Exemption (f), the investigatory exemption to the Public Records Law. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1 0(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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Right ofA ccess In Mr. Sarvis' letter to this office he explained that he is involved in litigation that is subject to the requested records. Please note that the personal status of Mr. Saris in the matter in question 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Deputy Chief Gibson SPRIS/812 Page Two December 22, 2015 Exemption (f) In the Department's response you explained the requested records were withheld pursuant to Exemption (f) of the Public Records Law. 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 In the Department's response you explained that, since Mr. Sarvis is familiar with the individual who were involved in the incident(s) noted in the report(s) ... it would not be possible for the Department to redact the report in a manner as to avoid indirect identification of the voluntary witness and complainant. Exemption (f) 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. Chie(o(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. In addition, any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, may be withheld from disclosure. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (identifying information is considered not only from the viewpoint of the public, but also from the vantage ofthose who are familiar with the individual). Given that you have requested the copies of complaints of a named individual with which you are familiar, it is not possible for the Department to release the responsive records without identifying the complainant without confirming witness involvement and jeopardizing future witness cooperation. Accordingly, the Department may permissibly withhold the responsive records and I will consider this matter closed.

Deputy Chief Gibson SPR15/812 Page Three December 22, 2015 Discovery The judicial 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 material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for Mr. Saris to access the responsive records through the judicial process given that copies of the records could be made available to him. cc: Mr. Robert Sarvis