Evan Anderson v. Boston, City of - Police Department (SPR 20160557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 8, 2016 SPR16/557 Lt. Michael P. McCarthy Office of Media Relations Boston Police Department One Schroeder Place Boston, MA 02120 Dear Lt. McCarthy: I have received the petition of Evan Anderson 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, Mr. Anderson requested "a copy of all completed 'request for cell phone data extraction' forms, 'request for covert camera installation' forms, and 'request for GPS installation' forms" between January 1, 2014 and December 31, 2015. In a response dated July 26, 2016 the Department denied access to responsive records, claiming they are exempt from disclosure under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lt. Michael P. McCarthy SPR16/557 Page2 August 8, 2016 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. To assist in requesting and responding to requests for public records please refer to 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 request. Please contact my office directly at the telephone number provided in this determination for further information. The Department's July 26 response The Department claims responsive records may be withheld under Exemption (f) of the Public Records Law. Exemption (f) 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 also 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.l8 (1979). In support of its Exemption (f) claim, the Department claims "completed covert camera installations request forms, completed request for GPS installation forms and completed request for cell phone data extraction are being withheld to protect the integrity of investigations." Further, you indicate "[r ]elease of completed forms would reveal covert locations, investigation techniques and targets, and potentially give criminals an unfair advantage as to legitimate law enforcement tools used in criminal investigations." Although portions of the responsive records may fall under Exemption (f) due to their investigatory nature, I find the Department has not explained with specificity how the entirety of

Lt. Michael P. McCarthy SPR16/557 Page 3 August 8, 2016 the information contained in the records fall within the exemption. It is unclear what type of information is contained in these records, nor is it clear how disclosing such information "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). As a result, the Department has not demonstrated how it may withhold the entirety of the records under Exemption (f). I understand an attorney on my staff contacted your office and provided you a copy of the file associated with this appeal. Order Accordingly, the Department is hereby ordered to provide Mr. Anderson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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. Supervisor of Records cc: Mr. Evan Anderson