Thomas Greve v. Provincetown Police Department (SPR 20171672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 11, 2017 SPR17/1672 Chief James F. Golden Provincetown Police Department 26 Shankpainter Road Provincetown, MA 02657 Dear Chief Golden: I have received the petition of Thomas Greve appealing the response of the Provincetown 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 November 13, 2017, Mr. Greve requested "copies of any materials in [the Department's] custody related to genetic testing performed on an unidentified white female (commonly referred to as 'Lady of the Dunes')." Previous appeal This request was the subject of a previous appeal. See SPRl 7/1613 Determination of the Supervisor of Records (November 28, 2017). I closed SPRl 7/1613 ordering the Department to provide Mr. Greve with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Department provided a response dated December 4, 2017, in which it denied access to a record pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the Department's response, Mr. Greve petitioned this office and this appeal, SPRl 7 /1672, 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

Chief Thomas F. Golden SPRl 7/1672 Page2 December 11, 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, § 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) (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. The Department's December /h response In its December 4th response, the Department indicates "[t]he Police Department does have one responsive record. However, it will be withheld from public disclosure at this time pursuant to Exemption (f) to the Public Records Law ..." The Department posits that "[o ] ne purpose of this exemption is to avoid premature disclosure of investigatory information prior to trial or other process for resolving the matters being investigated, and the prevention of disclosure of confidential investigative techniques, procedures or sources of information. WBZ-TV 4 v. District Attorney for the Suffolk District, 408 Mass. 595,601 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Even if any criminal investigation is concluded, '[t]he fact that an investigation has concluded does not necessarily destroy the investigatory exemption.' ... Worcester Telegram & Gazette ~ v. chief of Police of Worcester, 58 Mass. App. Ct. 1, 11 n. 10 ..." The Department further indicates that" ... although the case has been pending for several decades, it is still considered open and under investigation. That investigation is under the purview of Massachusetts State Police and The Cape & Island's District Attorney's office. The Cape & Island's District Attorney's office has recently confirmed that the matter remains under investigation. The responsive record in the custody of the [Department], is, therefore, appropriately withheld under Exemption (f), at this time." Exemption (I) The Department indicated it withheld the responsive record pursuant to 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

Chief Thomas F. Golden SPRl 7/1672 Page 3 December 11, 2017 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, 371 Mass. at 62. 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 Department's December 4, 2017 supplemental response did not contain the specificity required in a denial of access to public records. Although the Department indicates that it possesses "one responsive record" withheld under Exemption (f), it is unclear what type of record the Department is withholding. To deny access to a record under the Public Records Law, a records access officer (RAO), must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, §lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld a record without identifying the record. Therefore, the Department must identify the type of record it has in its possession. Further, based on the Department's response, it is unclear how this investigation remains ongoing. Also, the Department did not explain how disclosing any portion of the responsive record could reveal confidential investigative techniques unique to this investigation. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, §lO(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). Consequently, I find the Department has not demonstrated how disclosing any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). I understand a Public Records Division staff attorney 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 provides 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. Greve may appeal the substantive nature of the Department's response within ninety calendar days. See 950 C.M.R. 32.08(1).

Chief Thomas F. Golden SPRl 7/1672 Page4 December 11, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Thomas Greve