Mark Kaepplein v. Arlington, Town of - Police Department (SPR 20161055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 2, 2016 SPR16/1055 Jessica L. Walsh Records Department Arlington Police Department 112 Mystic Street Arlington, MA 02474 Dear Ms. Walsh: I have received the petition of Mark Kaepplein appealing the response of the Town of Arlington- Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Kaepplein requested a copy of records concerning a fatal motor vehicle crash in March regarding a specifically-named person near 134 Massachusetts A venue in Arlington, MA, specifically: 1. Any citations or charges showing the name, address and date of birth of the driver, 2. Any motor vehicle crash reports or analysis reports from the Department, 3. Any motor vehicle crash investigation or other reports from the Department of State Police, and 4. Any documents that may show legal case delays and continuances, and the reasons. · 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. 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

Jessica L. Walsh SPR16/1055 Page 2 December 2, 2016 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. Unclear if Department possesses certain responsive records In an October 27, 2016letter you informed Mr. Kaepplein that with respect to requests three and four, "the former would have to be made in a request to the Massachusetts State Police, and the latter should be made in a request to the Middlesex District Attorney's Office." In an October 27 email you indicated the Department does not "carry either of those items here as we were not the ones who created them." A record holder's duty to comply with requests for information extends to those records which exist and are in his custody. G. L. c. 4, § 7(26); see also 950 C.M.R. 32.03. Based on the Department's responses, it is unclear if it possesses records responsive to requests three and four; specifically, it is unclear what is meant by not "carrying" the records. Therefore, the Department must clarify whether it possesses these records and explain, if applicable, how an exemption applies to withhold any responsive records. Exemption (f) The Department claimed that Exemption (f) applies to withhold the motor vehicle citation(s) and the Department's motor vehicle crash report to Exemption (f), the "investigatory" exemption, permits the withholding of: 1 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

Jessica L. Walsh SPR16/1055 Page 3 December 2, 20 16 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 ofvoluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281, 290 n.18 (1979). However, the Department has failed to support its Exemption (f) claim. It is my understanding that the driver who is the subject of the requested records was cited and that the Middlesex District Attorney may be in the process of prosecution on this matter. Furthermore, the Department has failed to show why the records cannot be redacted pursuant to the Exemptions in the Public Records Law, and must be withheld in their entirety. Accordingly, the Department has failed to meet its statutory and regulatory obligation under the Public Records Law. Order I find the Department has failed to properly respond to a request for public records. Accordingly, the Department is hereby ordered to provide Mr. Kaepplein with a response to the request, provided 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. cc: Mark Kaepplein