Bruce A. Gage, Esq. v. Essex County Sheriff's Department - Essex County Regional Emergency Communications Center (SPR 20170205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2017 SPR17/205 Christopher M. Ryan Deputy Executive Director Essex County Regional Emergency Communications Director 18 Manning A venue Middletown, MA 01949 Dear Mr. Ryan: I have received the petition of Attorney Bruce Gage, representing Mr. William T. Doubleday appealing the response of the Essex County Regional Emergency Communications Center (ECRECC) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Gage requested access to any and all information relative to an incident concerning his client on a specific identified date. In a response dated January 13, 2017, ECRECC withheld the requested information under Exemption (f) of the Public Records Law. Purpose of request In his petition, Attorney Gage indicates that he is requesting access to the requested records on behalf of a client. Further, Attorney Gage provided the ECRECC with an authorization form, signed by his client serving as the initial request in an attempt to obtain responsive records. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Gage's purpose in making the request has no bearing on the public status of any existing responsive records. 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 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

Christopher M. Ryan SPR17/205 Page 2 February 28, 2017 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Gage may wish to consider another means of seeking to obtain any existing responsive 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, § 10A(d); 950 C.M.R. 32.03(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(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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(b )(viii); see also 950 C.M.R. 32.07(2). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. The ECRECC's response In its responses to Attorney Gage, the ECRECC explains it is withholding the entirety of the responsive records under Exemption (f). 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

Christopher M. Ryan SPR17/205 Page 3 February 28, 2017 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 Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). In the ECRECC's January 13 response, you explain it is the ECRECC's position that "the ECRECC believes that is has identified a recording(s) responsive to your request. Please be advised, however, that the ECRECC deems recordings of 911 calls from witness( es) to emergencies not to be public record pursuant to the G.L. c. 4 §7, cl. 26 (f)." The ECRECC also indicates that it would provide the aforementioned recordings to a requesting party "upon receipt of a subpoena." Based on these responses, it is unclear how the responsive records, in their entirety, fall within an exemption claimed by the ECRECC. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). I understand a member of the Public Records Division staff provided you with a copy of the file associated with this appeal. Conclusion Whereas ECRECC indicated it would provide a supplemental response, I will consider this appeal closed with the proviso that the ECRECC provide Attorney Gage with said response to the request within ten (1 0) 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, Rebecca S. Murray Supervisor of Records cc: Bruce A. Gage, Esq.