Mark Kaepplein v. Arlington, Town of - Police Department (SPR 20161214)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 30,2016 SPR16/1214 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 § 1O (b); see also 950 C.M.R. 32.08(2). Mr. Kaepplein requested a copy of records concerning a fatal motor vehicle crash. Mr. Kaepplein specifically requested: 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. This request was the subject of a previous appeal. See SPR1611 005 Determination of the Supervisor of Records (December 2, 2016). The Department responded to the December 2 order in a letter dated December 19, 2016. The Department provided responsive records with portions redacted under Exemptions (a), (c) and (f) to the Public Records Law. G. L. c. 4 §7(a), (c), (f). You also explained the Department does not maintain certain requested records. 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). 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 SPR1611214 ·Page 2 December 30, 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 ($1 0 .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. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Kapplein may wish to consider another means of seeking to obtain any existing responsive records. Request 1 and Request 2 Exemption (c) In its December 19 response the Department explains it redacted certain portions of the responsive records under Exemption (c). Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G.L. c.4, §7(26)(0

Jessica L. Walsh SPR1611214 Page 3 December 30, 2016 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The Department explains it redacted "the name of a suspect yet to be arraigned, as well as the names and other identifying information of civilian witnesses, as well as some of the deceased's personal information" under the second clause of Exemption (c). You further explain "[i]n this case, the phone numbers, addresses, and identifying information of an un-arraigned suspect, accident witnesses, and the immediate family members of both an alleged victim and potential suspect, constitute intimate details of a highly personal nature, some of which may be made public at arraignment if and when prosecution proceeds." I find the Department has met its burden to redact portions of the records under Exemption (c). Exemption (f) In its December. 19 response the Department explains it also redacted other information under Exemption (f). 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). 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. ld.

Jessica L. Walsh SPR16/1214 Page 4 December 30, 2016 The Department explains it "continues to assert [Exemption f] insofar as the Middlesex District Attorney's Office has not yet completed its arraignment of the suspect at issue, and information identifying such suspect and/or witnesses, and information could be employed to compromise the District Attorney's process or otherwise impact an open matter." I find the Department has met its burden to redact portions of the records under Exemption (f). Request 3 and Request 4 With respect to Requests 3 and 4, in your December 19 response you explain "[a]fter conducting a thorough search, the [Department] confirms that it does not possess responsive records within these categories of request[ s]." You indicate-the "Department does not have copies of State Police Reports or other investigative documents. The Department also does not have documents that may show 'legal case delays and continuance' from the District Attorney's Office or elsewhere." A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. G. L. c. 4, § 7(26); see also 950 C.M.R. 32.03. There is no obligation to create a record in response to a public records request. G. L. c. 66, § 1O (a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Accordingly I will consider this appeal closed with respect to Request 3 and Request 4. Whereas I find the Department has complied with its obligations under the Public Records Law, I consider this administrative appeal closed. I will not opine on the Department's Exemption (a) claim. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Kaepplein