Stanley J. Soltys v. Warren, Town of - Police Department (SPR 20170191)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2017 SPR17/191 Chief Bruce Spiewakowski Town of Warren - Police Department One Milton 0. Fountain Way; P.O. Box 606 Warren, MA 01083 Dear Chief Spiewakowski: I have received the petition of Stanley Soltys appealing the response of the Town of Warren - Police Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 30, 2016 and December 2, 2016 Mr. Soltys requested a copy of records pertaining to a specific incident. The Department provided certain records but denied others under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). The Public Records Law I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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, § lO(c) (2016 ed.); 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

Chief Bruce D. Spiewakowski SPR17/191 Page 2 February 24, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (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 (I) In a February 1, 2017 letter the Department denied access to requested records pursuant to Exemption (f), the investigative exemption of the Public Records Law. G. L. c. 4, § 7(26)(£). Exemption (f) 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 of Boston, 378 Mass. 281,290 n. 18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. Department responses In a response dated December 9, 2016 the Department explained "the cruiser video of the incident is evidence in an open and ongoing criminal case, and the defendant had not yet been

Chief Bruce D. Spiewakowski SPR17/191 Page 3 February 24, 2017 arraigned on criminal charges." In a December 28, 2016 response, the Department explains "[a]t the direction of the District Attorney, we are not releasing any information or discussing the case pre-arraignment." In the Department's February 1st response to Mr. Soltys you indicate "there are no records relevant to your request" for a requested "District Attorney directive to Chief Bruce Spiewakowski." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Therefore, I will consider this appeal closed with respect to this requested record. With respect to the remaining responsive records, the Department must explain which responsive records it is withholding and how disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). I understand a member of my staff contacted you and you indicated the Department intends to provide a supplemental response to Mr. Soltys. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Soltys with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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, ~M~ Supervisor of Records cc: Stanley Soltys