George Brennan v. Tisbury, Town of - Town Clerk (SPR 20171449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2017 SPR17/1449 Hilary Conklin Town of Tisbury-Town Clerk 51 Spring Street Vinyard Haven, MA 02568 Dear Ms. Conklin: I have received the petition of George Brennan of the Martha's Vineyard Times appealing the response of the Town of Tisbury (Town) to a request for public records. G. L. c. 66, §lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Brennan requested investigative reports from 2015, including "any and all discipline reports" regarding an identified police officer. Previous appeals This request was the subject of previous appeals. See SPR17/782 Determination of the Supervisor of Records (June 21, 20 17); SPR17/927 Determination of the Supervisor of Records (July 21, 20 17); SPR171 078 Determination of Supervisor of Records (August 18, 20 17); and SPR17/1211 Determination of Supervisor of Records (September 18, 20 17). I closed SPR17/1211 with the proviso that the Town provide Mr. Brennan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a letter dated October2, 2017, the Town provided a response in which it continues to deny access to portions of the responsive record pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7 (26)(f). Unsatisfied with the Town's response, Mr. Brennan petitioned this office and this appeal, SPR1711449, 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). 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 ·

Hilary Conklin SPR17/1449 Page2 October 23, 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, § 1 O(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. The Town's October 2nd response In the Town's October 2nd response, it continues to reiterate that it appropriately redacted names of witnesses who came forward during the Department's investigation to protect the individuals' identities pursuant to Exemption (f). The Town asserted that "[t]he Department's investigation involved witnesses who are members of the Tisbury Police Department and neighboring police departments. Disclosure of their identities may expose them to retaliation or reprisal within the Department and/or community and possibly lead to conflict amongst members ofthe Tisbury Police Department and/or neighboring law enforcement agencies. Disclosure of the names of these voluntary witnesses would likely be detrimental to the Department's ability to conduct future investigations in a thorough and complete manner if confidentiality was not afforded to the individuals who came forward." The Town cited the Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852 (1995) case referenced in the Supervisor's September 18, 2017 Letter and indicated that "the facts and circumstances giving rise to the Court's order requiring disclosure in [that case], is markedly different from the facts surrounding the 2015 investigation conducted by the TisburyPolice Department. As such, the requested records are not subject to disclosure in unredacted format." Further, the Town indicated that, unlike Globe Newspaper, which concerned an internal affairs investigation of police misconduct during the investigation of a notorious murder case which garnered wide television media coverage, the Department's 2015 investigation did not gamer previous media coverage nor a shred of publicity. The Town insists that because the investigation was not a matter of public concern, the "identity of the officers who provided the Department with information during the course of its review of the incident in 2015 are not subject to disclosure." Exemption (f) The Town continues to claim it redacted the identities of voluntary witnesses under Exemption (f) of the Public Records Law. Exemption (f), the investigatory exemption, permits the withholding of:

Hilary Conklin SPR17/1449 Page 3 October 23, 2017 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 of Boston, 378 Mass. 281,290 n.l8 (1979). Exemption (f) invites a "case-bycase 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, 3 78 Mass. at 289-90. 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. Id. 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). 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. Therefore, 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. Based on the Town's response, it is unclear how the police officer statements given during the internal affairs investigation process were voluntary, meriting the protection afforded voluntary witnesses under Exemption (f). Accordingly, I find the Town has not met its burden in establishing that the information given by the police officers was voluntary, rather than given in the course of each officer's duty as a police officer, to cooperate with an internal affairs investigation. I understand a Public Records Division staff attorney contacted your office about this appeal.

Hilary Conklin SPR17/1449 Page4 October 23, 2017 Order Accordingly, the Town is hereby ordered to provide a response to the request, provided 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 dectronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: George Brennan