Samantha Allen v. Worcester, City of - Police Department (SPR 20160230)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supavisor ofR ecords April 15, 2016 SPR16/230 Sergeant Kerry F. Hazelhurst City of Worcester Police Department 9-11 Lincoln Square Worcester, MA 01608 Dear Sgt. Hazelhurst: I have received the petition of Samantha Allen of the Telegram & Gazette appealing the response of the City of Worcester-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, Ms. Allen requested a copy of the surveillance video ofthe incident involving Wilmer Delgado Soba, shortly before his death on July 29,2015 at Penny Wise Market in the City of Worcester. The Department denied Ms. Allen's request, on February 15,2016, stating that the information requested is either active investigations or incidents that have yet to go to trial. The Department cited Exemptions (c) and (f) to withhold the record(s). Ms. Allen appealed the denial. Department failed to provide a timely response The Department's February 15 response was provided thirty-two (32) days after Ms. Allen submitted her request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. 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 District Attorney for the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Sergeant Kerry F. Hazelhurst SPR16/230 Page 2 April 15, 2016 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (f) In your February 15,2016 email, you denied Ms. Allen's request for the surveillance video recording(s) in accordance with Exemption (f) of the Public Records Law. In this denial you state that the information is either an active investigation or incidents that have yet to go to trial, then you state in a paragraph labeled, "Open Investigation" that this is currently an active investigation. Your response is not clear as to which surveillance video you are referring to in each of your statements, and whether there is more than one recording that is responsive to Ms. Allen's request. Exemption (f), the so-called investigatory exemption, permits investigatory officials to withhold: 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) The Department's response fails to satisfy its burden by effectively denying Ms. Allen's request for records. The Department also failed to state what records it has that are responsive to Ms. Allen's request. A denial must detail the specific basis for the Department to withhold the requested records under Exemption (f). See 950 C.M.R. 32.08(1). The Department must provide a written explanation, with specificity, how Exemption (f) applies to withhold the video recording(s) in their entirety. Exemption (c) The Department also claimed that Exemption (c) applies to withhold autopsy reports and the victim's medical records. While Exemption (c) allows a record custodian to withhold medical files and information, Ms. Allen did not request autopsy reports and/or the victim's medical records. Therefore, I decline to opine on the Department's Exemption (c) claim at this time. Accordingly, the Department is hereby ordered, within ten (1 0) days of this order, to provide Samantha Allen with a response to the request, prepared 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 (10) days provide to Ms. Allen 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

Sergeant Kerry F. Hazelhurst SPR16/230 Page 3 April15, 2016 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(aJ,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 To assist the Department in responding to requests for public records I advise a review of our publication, A Guide to the Massachusetts Public Records Law. This document is 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 Public Records Law upon reque t. Please contact my office directly at the telephone number below for further information. cc: Ms. Samantha Allen