J. Gregory Batten v. Boston, City of - Police Department (SPR 20160066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 24, 2016 SPR16/066 Office of the Legal Advisor Boston Police Department One Schroeder Plaza Boston, MA 02120-2014 Dear Legal Advisor: I have received the petition of I. Gregory Batten, Esq., appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Batten requested records regarding a specifically identified City of Boston police officer. In an unsigned response dated November 17, 2015 the Department denied his request in its entirety citing to Exemption (f), the investigatory exemption to the Public Records Law. G. L. c. 4 §7 (26)(f). In its letter the Department indicated that the officer named in the request has two open internal affairs cases with investigations pending. 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). Attorney Batten requested several categories of records, including but not limited, to internal affairs records. The Department's response is unclear whether the Department possesses any other records responsive to his requests. If the Department possesses these records, it must provide them or specifically explain how an exemption to the Public Records Law applies to withhold each of them. See 950 CMR 32.05(4) (custodians of records are required to use their superior knowledge of the contents of their files to assist in promptly complying with the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Office of the Legal Advisor SPR16/066 Page 2 February 24, 2016 request). 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); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are not blanket in nature). An agency cannot justify withholding an entire record simply by showing that it contains some exempt material. Exempt material can be segregated and the balance of the record be made available. The Department's response does not explain why non-exempt portions of cannot be provided. The response by the Department did not contain the specificity required in a denial of access to public records. The Department is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each of the requested records. The Department's response does not explain whether there is an ongoing investigation, whether the records contain confidential investigative techniques, nor whether disclosure would reveal the identities of witnesses, informants, or complainants as required by Exemption (f). As a result, I find the Department has yet to meet its burden to withhold the responsive records in their entirety under Exemption (f). Accordingly, the Department is hereby ordered to do a full and thorough search of its records, identify any and all records responsive to Attorney Batten's request, and within ten (10) days of this order, provide Attorney Batten with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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 Batten 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 ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records.

Office of the Legal Advisor SPR16/066 Page 3 February 24, 2016 To assist the Department in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Publ" c Records Law upon request. Please contact my office directly at the telephone number pro ded in this determination for further information. Enclosure cc: Mr. J. Gregory Batten, Esq. Sgt. Michael P. McCarthy Ms. Nicole I. Taub, Esq.