Maya Shaffer v. Boston, City of - Police Department (SPR 20160372)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams June 22, 2016 Supervisor ofR ecords SPR16/372 Lieutenant Detective Michael P. McCarthy Director, Office of Media Relations Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Lieutenant Detective 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 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested the 911 audio of the call made by an off duty officer related to a specifically identified report. You denied her request citing Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, § 7 (26) (c), (f). Ms. Shaffer appealed. 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, § 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 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 fees are paid, a records custodian must provide the responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lieutenant Detective Michael McCarthy SPR16/372 Page 2 June 22, 2016 Exemption (f) In its May 27, 2016 response the Department explained that it would withhold the requested records 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 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. 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). In your response you explained "[t]here is currently an active internal investigation into" the incident described in the 911 recording. In correspondence with my staff you further explained, "public release of the 911 audio will serve to negatively impact the integrity of that investigation. Specifically, in the event that individuals involved in the underlying incident have not given a statement to the Department regarding their participation and/or observations, the public dissemination of the call may influence the information provided during the course of the investigation." Your correspondence to this office concludes by stating that premature disclosure "during the pendency of an investigation will unduly prejudice the Department's ability to conduct a fair and thorough investigation into allegations of misconduct." Conclusion The purpose of Exemption (f) is to permit investigatory officials to withhold records during an investigation. Whereas the Department has met its burden to show an investigation is ongoing I find the Department acted within its discretion in wi olding the 911 recording at this time. Accordingly, I decline to opine upon the Depart xemption (c) claim. ;J7rs, .~lliams cc: Ms. Maya Shaffer