Philip Sharp v. Somerville, City of - Police Department (SPR 20170085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 27, 2017 SPR17/085 Jason Grossfield, Esq. City of Somerville Office of the City Solicitor 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 (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Sharp requested a copy of the incident report and death report regarding a specifically-named individual found dead in a field near the City of Somerville with a gunshot wound in September 1972. The Department denied the request pursuant to Exemption (f) of the Public Records Law. Mr. Sharp appealed. Prior appeal The requested records were the subject of a prior appeal and determination. See SPR16/1042 Supervisor of Records Determination (December 7, 2016). The Supervisor of Records closed the prior appeal with the proviso that the Department provides Mr. Sharp a detailed written response to support its Exemption (f) claim. A copy of the appeal file was provided to the Office of the City Solicitor when the prior appeal was opened. You assured an attorney on my staff in December and early January 2017 that a response would be provided. To date, neither the Office of the City Solicitor nor the Department has provided the detailed response. Therefore, Mr. Sharp appealed to this office again. 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

Jason Grossfield, Esq. SPR17/085 Page 2 January 27, 2017 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 ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. 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: 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). The Department has failed to meet its statutory and regulatory obligation of specificity under the law in its response to Mr. Sharp concerning the Department's 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 staff in December 2016 and January 2017 that the City Solicitor's Office would work with the Department in drafting a more detailed response. Mr.

Jason Grossfield, Esq. SPR17/085 Page 3 January 27, 2017 Sharp appealed because the Department has failed to keep its promise of providing a second, more detailed response Order I find the Department has not met its burden in responding to a request for public records. Accordingly, the Department is hereby ordered to provide Mr. Sharp with a response to the request, within ten (1 0) days and 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. Sincerely, ftfuiGtA 111LtAlt/l~~ U Rebecca S. Murray Supervisor of Records cc: Philip Sharp (Via Email) cc: Deputy ChiefPaul Trant