Alexander Jones v. Boston, City of - Police Department (SPR 20160685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/685 Ms. Nicole I. Taub, Esq. Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Attorney Taub: I have received the petition of Alexander Jones 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. Jones requested (2) category of records: 1) "a list or map of all of the locations in the City of Boston in which Boston Police Department has installed surveillance cameras," and 2) "any paper or electronic document in which such locations are compiled." You responded on June 16 and July 28 denying his request, claiming that the responsive records are exempted from disclosure by Exemptions (f) and (n) of the Public Records Law. G. L. c. 4 § 7 (26) (f), (n). 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). Exemption (f) In your letters dated July 16 and July 28, you claim the responsive records are exempt from disclosure under Exemption (f) and Exemption (n). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Nicole Taub, Esq. SPR16/685 Page 2 September 16, 2016 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) 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.18 (1979). You claim the responsive records may be withheld under Exemption (f) because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. In a subsequent response dated July 28, 2016, pursuant to the public safety exemption of the Public Records Law. G. L. c. 4 § 7(26)(n), the Department once again denied Mr. Jone's request by further claiming that disclosing the requested records would "not only potentially endanger the lives and physical safety of law enforcement officers and citizens of the City of Boston but also adversely impact the Department's ability to respond to criminal activity and provide police services." Exemption (n) Exemption (n) applies to

Ms. Nicole Taub, Esq. SPR16/685 Page 3 September 16, 2016 records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, §7 (26) Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. However, this response does not explain with specificity how the responsive records, in their entirety, would reveal "the location of cameras" or "would prejudice the possibility of effective law enforcement. In camera review In order to facilitate my review of the matter, the Department may provide this office with unredacted copies of the responsive records for in camera review along with an explanation of its position regarding the applicability of the claimed exemptions to the responsive record. Please be advised that any cover letter accompanying records submitted for in camera review shall be considered a public record and will be retained with the file associated with this appeal. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Ms. Nicole Taub, Esq. SPR16/685 Page 4 September 16, 2016 Order I find the Department has failed to satisfy its burden of proving with specificity how the responsive records may be withheld in their entirety under Exemptions (f) and (n) of the Public Records Law. Accordingly, the Department is hereby ordered to either provide Mr. Jones a revised written response to his request, or provide the responsive records to this office for in camera review. n IJ'.· Williams ervisor of Records cc: Mr. Alexander Jones