Ryan Kath v. Gloucester, City of - Legal Department (SPR 20161002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records November 17, 2016 SPR16/1002 Krisna M. Basu, Esq. Assistant General Counsel City of Gloucester-Legal Department City Hall Nine Dale A venue Gloucester, MA 01930 Dear Attorney Basu: I have received the petition of Ryan Kath, an investigative reporter for WBZ-TV Boston appealing the response of the City of Gloucester (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kath requested all fire department and police department service calls to a specifically identified address. In a November 2, 2016 letter, the City denied the request pursuant to Exemption (f) of the Public Records Law. Mr. Kath appealed. Requirements for an appeal Mr. Kath should be advised that while this office has opened an appeal on this request, in the future, when requesting an appeal, the requirements for an appeal are as follows: Such appeal shall be in writing, shall include a copy of the original request, and shall include a copy of the letter by which the custodian made a response. The supervisor shall accept an appeal only from a person who has made his or her request in writing. An oral request, while valid as a public records request pursuant to 950 CMR 32.05 (3), may not be the basis of an appeal under 950 CMR 32.08. 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 ofphysical 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). 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

Krisna M. Basu, Esq. SPR16/1002 Page2 November 17,2016 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, § 1 0( 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 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. Exemption (/) In both your November 2 and 15, 2016letters, you stated that Exemption (f) allows for the withholding of all the requested records because disclosure will prejudice an ongoing · investigation by law enforcement, and that the City has been asked not to provide records regarding the underlying matter. 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 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).

Krisna M. Basu, Esq. SPR16/1002 Page 3 November 17, 2016 The City's initial response and its November 15, 2016 response fails to provide the level of support necessary to withhold the "dispatch or service call logs" of the police and fire departments. The City claims that there is an on-going investigation by law enforcement, but does not elaborate on who is conducting the investigation, and fails to show how release of the logs, even in a redacted format, will prejudice any on-going investigation. Mr. Kath informed our office that he does not seek any investigation reports beyond the dispatch and/or service logs, which can be redacted if necessary. Further, the City now states that the logs contain information that is exempt under Exemption (c). A custodian of records has a duty to segregate exempt material from the content of the record and provide the balance of the record. A records custodian should not withhold an entire record, where the exempt material may be redacted. Therefore, I find that the City has failed to meet its statutory and regulatory obligation of supporting both its Exemption (c) and Exemption (f) claims to withhold the dispatch/service call records in their entirety. In a November 14, 2016 telephone conversation, a member of my staff explained that the City has an obligation to fully support its exemption claim(s), and specifically explain how the exemptions apply to withhold the records in their entirety. A review of your November 15, 2016 response reveals that the City has still failed to meet its statutory and regulatory obligation under the Public Records Law. Order I find the City has failed to properly respond to a request for public records. Accordingly, the City is hereby ordered to provide Mr. Kath with the dispatch logs, redacted where necessary and provide him with a specifically-stated response concerning the redactions and exemption claims within ten (10) days, in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response m st be provided to this office. truH It is preferable to send an electronic copy of this respon o this ffice at pre@sec.state.ma.us. r Supervisor of Records cc: Ryan Kath