Arthur G. Grenier v. Salisbury, Town of - Police Department (SPR 20171519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 8, 2017 SPR17/1519 Sergeant Robert J. Roy Town of Salisbury Police Department 5 Beach Road Salisbury, MA 01952 Dear Sergeant Roy: I have received the petition of Arthur G. Grenier appealing the response of the Town of Salisbury 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, on October 23rd, Mr. Grenier requested a copy of 2015, 2016 and 2017 quarterly reports regarding organized crime, vice and drug investigations. He states, "[t]his is referenced in an earlier and related request pertaining to policies for Vice; accreditation reference no. 43.1. l(d)." The Department has denied Mr. Grenier's request in its entirety due to investigations that remain active and ongoing. Mr. Grenier appealed the response. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. Robert J. Roy SPR17/1519 Page 2 November 8, 2017 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 at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys in the Public Records Division are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff 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. Exemption (I) The Department is withholding each of the 2015, 2016 and 2017 quarterly reports in their entirety due to active and ongoing investigations pursuant to Exemption (f) of the Public Records Law. 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 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 Cornm'r of Boston, 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. at 289-90. 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, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289.

Sgt. Robert J. Roy SPRl 7/1519 Page 3 November 8, 2017 The Department has not offered any specific information to support withholding the 2015, 2016 and 2017 quarterly reports in their entirety and how release even in a redacted manner would prejudice any active and on-going investigations. Specificity in claiming exemptions The Department's response merely states, "I spoke with the Lieutenant regarding your request. He advised that the drug investigations are still active and on-going, and no information will be given out on active cases." The Department has not met its burden of specificity in responding and denying records under the Public Records Law. The Department did not demonstrate with specificity how Exemption (f) applies to withhold, in its entirety, the responsive records. See Reinstein at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § lO(a). It is my understanding that an attorney in the Public Records Division contacted you and the Department indicated it would provide a supplemental response. Conclusion Accordingly, whereas the Department will provide a substantive response, I will consider this appeal closed with the proviso that the response is provided to Mr. Grenier 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. Grenier may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Arthur Grenier