Maya Shaffer v. Boston, City of - Police Department (SPR 20160752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2016 SPR16/752 Lt. Michael McCarthy Boston Police Department Office of Media Relations One Schroeder Plaza Boston, MA 02120 Dear Lt. 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 a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on May 26,2016, Ms. Shaffer requested the internal affairs file of a specifically identified officer of the Department. Previous appeal This request was the subject of a previous appeal. See SPR16/63 5 Determination of the Supervisor of Records (August 26, 2016). In my August 26determination I found the Department failed to respond to a request for public records and ordered it to provide Ms. Shaffer with a response to the request, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). In a response dated September 1, 2016, the Department indicates it is withholding responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). Ms. Shaffer appealed this response and this appeal (SPR16/752) was opened as a result. 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, § lO(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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lt. Michael McCarthy SPR16/752 Page 2 October 6, 2016 1O (b ); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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. Exemption (f) 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 of Boston, 378 Mass. 281,290 n.18 (1979). In the Department's September 1 response you indicate "the investigation into this incident is still open" and, as a result, may be withheld under Exemption (f). You also explain "[t]he disclosure of information prior to the completion of the investigation into the allegations would serve to compromise the integrity of the investigation and potentially taint any evidence or information that must still be considered in making a final determination." You also indicate "[u]pon completion of the investigation, the IA file would no longer be exempt from disclosure in its entirety and may be provided with appropriate redactions." Ms. Shaffer is correct in her assertion that internal affairs records are different from ordinary disciplinary records and are generally public records. See Worcester Telegram & Gazette v. ChiefofPolice ofWorcester, 58 Mass. App. Ct. 1 (2003) (internal affairs records cannot be withheld under the personnel clause of Exemption (c)). However, this does not preclude a governmental entity from applying other exemptions from the Public Records Law to

Lt. Michael McCarthy SPR16/752 Page 3 October 6, 2016 redact or withhold portions that ought to be so withheld. Such is the case for records concerning an ongoing investigation. Accordingly, I find the Department has met its burden under Exemption (f) to withhold the internal affairs file related to the ongoing investigation. Ms. Shaffer may again request the records from the Department once the investigation has concluded. See Bougas, 371 Mass. at 62. Additional internal affairs records In an email dated September 1, Ms. Shaffer indicates she is requesting all past internal affairs files regarding this officer. You indicated the Department is reviewing this request and a "cost estimate will be forthcoming." I understand an attorney on my staff contacted you about this matter. Conclusion Whereas the Department explained it will provide a response for the provision of the remaining internal affairs files, I will consider this appeal closed with the proviso that the Department provide Ms. Shaffer a supplemental response prepared 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 co y of this response to this office at pre@ sec. state.ma. us. . Williams cc: Ms. Maya Shaffer Ms. Nicole Taub, Esq.