Brian P. Harris, Esq. v. Billerica, Town of - Police Department (SPR 20170569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2017 SPR17/569 Sergeant John E. Zarro Town of Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Zarro: I have received the petition of Brian P. Harris, Esq., of Harris and Associates, P.C, on behalf of his client, appealing the response of the Town of Billerica Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Harris requested the witness statements of identified persons regarding a February 5, 2017 incident. The Department denied the request pursuant to Exemption (f) of the Public Records Law. Attorney Harris appealed. Status of the Requester and Appeals to the Supervisor While Attorney Harris may be seeking the witness statements to represent his client, Attorney Harris and his client have no greater right of access to the records than any other person in the public realm. The Public Records Law does not distinguish between individuals seeking public records. See G. L. c. 66, § lO(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Whereas the records are directly related to Attorney Harris's and his client's possible legal action as a result of the incident, there may be a unique right of access to the witness statements through judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). 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, § lOA(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). 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

Sgt. John E. Zarro SPRl 7/569 Page 2 May 10, 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, § lO(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. Exemption (I) The Department withheld in their entirety the statements of voluntary witnesses of the persons identified by Attorney Harris in his request pursuant to Exemption (f) of the Public Records Law. 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)(£). Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, at 62; cited with approval in Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289 (1979). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein, 378 Mass. at 290 n.18. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who may be familiar with the individual. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations.

Sgt. John E. Zarro SPRl 7/569 Page 3 May 10, 2017 The Department's April 18th response states that it withheld the witness statements because disclosure of the statements would jeopardize the cooperativeness of witnesses in the matter that lead to the statements of the voluntary witnesses, and in any future law enforcement efforts. Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction, the Department would be justified in withholding the witness statements in their entirety. However, the Department has not specifically explained in its April 18th response whether the witness statements can be redacted in such a way to protect the identification of each of the witnesses who are already known to Attorney Harris and his client under Exemption (f). A Public Records Division attorney contacted you to discuss this appeal and ascertain whether redaction is possible in this situation under Exemption (f), but was unable to connect with you directly. Please be advised that the exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); see also Reinstein, 378 Mass. at 289-90. Order I find that the Department has not met its burden of supporting withholding the witness statements in their entirety under Exemption (f), by not explaining why the statements cannot be redacted to protect the identities of the witnesses who are the subjects of the statements. Accordingly, the Department is ordered to provide Attorney Harris with a supplemental response concerning the witness statements that the Department withheld under Exemption (f), 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. Attorney Harris may appeal the substantive nature of the Department's response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian P. Harris, Esq.