John M. Thompson, Esq. v. Springfield, City of - City Solicitor (SPR 20160952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords November 4, 2016 SPR16/952 Edward M. Pikula, Esq. City Solicitor City of Springfield - Law Department 3 6 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Pikula: I have received the petition of John M. Thompson, Esq. of Thompson & Thompson, P.C. appealing the response of the City of Springfield - City Solicitor (City) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Thompson requested a copy of an excessive force report and interrogation videos regarding an incident on February 26, 2016 involving a specifically-named City police officer. The City denied the request pursuant to Exemption (f) of the Public Records Law. Attorney Thompson 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, § IO(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. Exemption(/) Exemption (f) allows a records custodian to withhold information or records that are: One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Edward M. Pikula, Esq. SPR16/952 Page 2 November 4, 2016 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 possib.ility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f) Exemption (f) provides protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289 (1979). In your October 14, 2016 response to Attorney Thompson, you included letters dated October 13 and October 14, 2016 from the United States Department of Justice (DOJ) and the Massachusetts Office of the Attorney General (AGO). These letters request that the City not disclose the audio/video recording of the interrogations or the Internal Investigations Unit investigation records because release will prejudice their on-going criminal investigations. In an October 31, 2016 telephone call to an attorney on my staff, you explained that there is an impoundment order in effect with the Superior Court that precludes disclosing the responsive records that Attorney Thompson seeks. The Supreme Judicial Court has found an impoundment order may preclude access to a public record. See Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209 (2011). Accordingly, I find the City has met its statutory obligation in denying access to the public records. As such, I decline to opine upon this request any further. This appeal is closed. If Attorney Thompson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: John M. Thompson, Esq.