Darrell Proffitt v. Chelmsford, Town of - Police Department (SPR 20171561)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor ofR ecords November 14, 2017 SPR17/1561 Kathleen Bennett Town of Chelmsford Police Department Records Division 2 Olde North Road Chelmsford, MA O1 824 Dear Ms. Bennett: I have received the petition of Darrell Proffitt appealing the response of the Town 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, Mr: Proffitt requested a copy of records related to the. death of an identified person. The Department denied Mr. Proffitt' s request in its entirety under Exemption (f) of the Public Records Law. Mr. Proffitt appealed. 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, § IOA(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, § 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. To assist in requesting and responding to requests for public records please refer to our One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.rna.us

Kathleen Bennett SPRl 7/1561 Page 2 November 14, 2017 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 (f) The Department is withholding the report regarding the death of an identified person in its entirety due to an open investigation 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 effo1is 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, 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. The Department has not offered any specific information to support withholding the

Kathleen Bennett SPRl 7/1561 Page 3 November 14, 2017 report in its entirety and how release even in a redacted manner would prejudice any active and on-going investigation. Specificity in claiming exemptions The Department's response states, "releasing information on this open case could alert a potential suspect and affect or jeopardize the open investigation." The Department has not met its burden of specificity in responding and denying access to 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, § 1O (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 supplemental response, I will consider this appeal closed with the proviso that the response is provided to Mr. Proffitt 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 ofthis response to this office at pre@sec.state.ma.us. Mr. Proffitt 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: Darrell Proffitt