Gregory A. Pugh, Jr. v. Watertown, City of - Police Department (SPR 20171554)

The Commonwealth of Massachusetts William Francis Galvin, Secretai:y of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 8, 2017 SPR17/1554 Lt. James P. O'Connor Watertown Police Department 552 Main Street Watertown, MA 02472 Dear Lt. O'Connor: I have received the petition of Gregory Pugh appealing the response of the Watertown 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. Pugh requested records related to an identified individual and a certain accident. The Department responded to his request, denying a portion of his request claiming "the information clearly relates to an on-going investigation." G. L. c. 4, § 7(26)(f). 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, § 1O (b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c ustodian 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 (/) The Department's response indicates "[a] portion of [Mr. Pugh's] request is denied in accordance with Exemption F ofG.L. Ch. 4 Sec. 7, as [Lt. O'Connor] believe[s] the information clearly relates to an on-going investigation." One AshburtonPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lt. James P. O'Connor SPRl 7/1554 Page 2 November 8, 2017 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 Comm'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, 3 78 Mass. at 289-90. The Department's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "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). As a result, I find that the Department has not satisfied its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I understand a Public Records Division staff member contacted you and you indicated the Department would provide a supplemental response to Mr. Pugh. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Pugh with 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 electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Pugh may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1).

Lt. James P. O'Connor SPR17/1554 Page 3 November 8, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Gregory A. Pugh, Jr.