Roy Nilson v. Gardner, City of - Law Department (SPR 20170630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 15, 2017 SPR17/630 Cheryl Blodgett City of Gardner - Police Department 200 Main Street, Suite 211 Gardner, MA 01440 Dear Ms. Blodgett: I have received the petition of Roy Nilson appealing the response of the City of Gardner - 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, Mr. Nilson is appealing the substantive nature of the Department's May 8, 2017 response. Current appeal The Department cited Exemption (f) in its May 8th response to withhold responsive records. Exemption (I) 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 ofrecords 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 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

Cheryl Blodgett SPRl 7/630 Page 2 May 15, 2017 the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). In its May 8th response the Department states, "[a]ny release ofrecords could jeopardize any pending case information the State Police may be working on." While the Department claims the responsive record pertains to an ongoing investigation, it does not demonstrate how the requested records are part of the investigation, nor how disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (explaining that Exemption (f) "invites case-by-case consideration of whether access 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest .... "'). As a result, it is unclear how the responsive records, in their entirety, are exempt from disclosure. See id. at 289-90 (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). The Department must demonstrate why the records are exempt in their entirety, and why redacting segregable portions would not suffice. I understand a Public Records Division staff member contacted you about this matter. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Nilson 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, Rebecca S. Murray Supervisor of Records cc: Mr. Roy Nilson