David Myers v. Everett, City of - Police Department (SPR 20160547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 8, 2016 SPR16/547 Captain Paul Landry City of Everett - Police Department 45 Elm Street Everett MA, 02149 Dear Captain Landry: I have received the petition of David Myers appealing the response of the City of Everett -Police Department (Department) to his request for records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, with regards to "the investigation of 527 Ferry Street Apt. 1 for the year of 10-12/09", Mr. Myers requested: 1. A copy of the name(s) of whom are in possession of the transaction receipts; 2. A copy of the names(s) of whom had received the control buy evidence from "XMAS" and; 3. A copy ofthe name(s) of whom are in the possession ofthe control buy evidence. In a response dated July 5, 2016 the Department informed Mr. Myers that there are no records responsive to requests numbers 1 and 3. The Department withheld the records responsive to request number 2 pursuant to Exemption (f), investigatory exemption of the Public Records Law. G. L. c. 4, §7(26)(£). Thereupon, Mr. Myers appealed to this office. 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). Records in existence The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Captain Paul Landry SPR16/547 Page2 August 8, 2016 public records). Whereas there are no records responsive to requests 1 and 3 this portion of the appeal is closed. In its July 5 response the, Department explained that it is withholding the records responsive to request number 2 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. Confidential investigative techniques may be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 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 ofBoston, 378 Mass. 281,290 n.18 (1979). In its response the Department explained that any responsive records contained information related to ongoing investigations, use of investigative techniques, as well as contains information regarding confidential informants. I find the Department's response meets the burden of explaining how the responsive record is investigatory material whose disclosure would interfere with investigatory activities. As a result, I find the Department has met its burden of explaining with specificity how Exemption (f) applies to withhold the responsive record. Supervisor of Records cc: Mr. David Myers