Darrell Proffitt v. Chelmsford, Town of - Police Department (SPR 20171411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 10, 2017 SPR17/1411 Katie Bennett Records Access Officer Town of Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Bennett: I have received the petition of Darrell Proffitt appealing the response of the City of Chelmsford Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 30, 2017, Mr. Proffitt requested "any and all records regarding any case that [an identified individual] was involved in. Mostly the disappearance and death of [the identified individual's] daughter." The Department provided a response on September 12, 201 7, in which it denied access to responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Mr. Proffitt petitioned this Office and this appeal, SPR17/1411, was opened as a result. 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). 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. 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

Katie Bennett SPR17/1411 Page 2 October 10, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's September 12th response In its September 1ih response, the Department indicated that "the case in question is still an open case/investigation and cannot be released based upon" Exemption (f). Exemption (f) The Department indicated that it was withholding responsive records under 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)(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). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 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 Reinstein, 378 Mass. at289-90. The Department's September 1ih response did not contain the specificity required in a denial of access to public records. The response does not offer any specific explanation as to how disclosure of the responsive record will negatively impact an investigation nor how it would reveal particular investigative techniques that are unique to the Department. Instead, the Department's response merely cites Exemption (f) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue, a blanket denial without providing any further information with respect to the requested records. While the Department claims the responsive records pertain to an "open case/investigation," it does not explain how disclosure of the responsive records or any segregable portion thereof

Katie Bennett SPR17/1411 Page 3 October 10,2017 "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). Under the Public Records Law any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff member contacted your office about this appeal. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provide said response in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Mr. Proffitt may appeal the substantive nature of the Department's response within ninety calendar days. 950 C.M.R. 32.08(1 ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Darrell Proffitt