Philip Sharp v. Somerville, City of - Police Department (SPR 20161042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2016 SPR16/1042 Jason Grossfield, Esq. Assistant City Solicitor City of Somerville 93 Highland A venue Somerville, MA 02143 Dear Attorney Grossfield: I have received the petition of Philip Sharp appealing the response of the City of Somerville Police Department (City) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Sharp requested a copy of the death and/or incident report concerning the death of a specifically-named individual found in a field near Somerville in September 1972. Police Department (Department) Deputy ChiefPaul Trant denied the request in its entirety pursuant to Exemption (f) of the Public Records Law. Mr. Sharp 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, § 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. Exemption (f) The Department's October 26 email response claims that Exemption (f) of the Public Records Law applies to withhold the record(s), because the records Mr. Sharp seeks are part of an ongoing criminal investigation. Exemption (f), the "investigatory" exemption, permits the withholding of: 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

Jason D. Grossfield, Esq. SPR16/1042 Page2 · December 7, 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 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). The Department has failed to meet its statutory and regulatory obligation of specificity under the law in its response to Mr. Sharp concerning its claim that Exemption (f) applies to withhold the incident report and related records in their entirety. A custodian of records has a duty to segregate exempt material from a record, and provide the balance of the record whenever possible. You informed an attorney on my staffthat the City Solicitor's Office would work with the Department in drafting a more detailed response. A copy of the appeal file was provided by this office to assist in drafting a second response to Mr. Sharp. Whereas the City Solicitor's Office has indicated that a more detailed written response will be provided, I am closing this appeal with the proviso that the City provide Mr. Sharp with the response within ten (10) days, 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 copy of this response to this office at pre@sec.state.ma.us. Mr. Sharp may appeal the substantive nature of the City's supplemental response within ninety 90) days. 950 C.M.R. 32.08(2). cc: Philip Sharp (via email) Deputy Chief Paul Trant