Thomas Greve v. Boston, City of - Police Department (SPR 20171705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2017 SPR17/1705 Martha J. DeMaio City of Boston - Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Thomas Greve appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2017, Mr. Greve requested "copies of any materials in [the Department's] custody related to genetic testing performed on two unidentified black males whose bodies were discovered in Dorchester, Suffolk County, Massachusetts, on October 6, 1988." The Department provided a response dated October 4, 2017, in which it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(:f). Unsatisfied with the Department's response, Mr. Greve petitioned this office and this appeal, SPRl 7/1705, 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). 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 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

Martha J. DeMaio SPRl 7/1705 Page 2 December 18, 2017 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 Department's October lh response In its October 4th response, the Department indicated that "[t]his is a duplicate request from September 26, 2017 which was denied based on the information contained in a pending investigation is not subject to disclosure under the Investigatory Exemption. See M.G.L. c. 4, § 7(26)(f). Please be advised that the status of this case is still pending and the original response from September 27, 2017 still stands ..." The Department's September 2th response In its September 2?1h response, the Department indicated that, "[t]reated as a public records request, the information contained in a pending investigation is not subject to disclosure under the Investigatory Exemption. See M.G.L. c. 4, § 7(26)(f). We have been advised that this is an active investigation. The cases are currently unsolved and as such we cannot release any of these records. The information contained within this file is exempt under the investigatory exemption of the Public Records Law. ... Exemption (f) permits allows [sic] investigative officials to withhold materials that could compromise investigative efforts if disclosed. Accordingly, a records custodian may withhold any information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials, and similarly, records custodians may withhold confidential investigative techniques indefinitely since their disclosure would prejudice future law enforcements efforts ...." Exemption (I) The Department indicated it withheld responsive records 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

Martha J. DeMaio SPRl 7/1705 Page 3 December 18, 2017 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 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. Although the Department indicated that it withheld responsive records, it is unclear what type of record(s) 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 of records, 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 responsive records without identifying the records. Therefore, the Department must identify the type of record(s) 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 "alert suspects to the activities of investigative officials" or 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 did not demonstrate how disclosure of the responsive records or 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 to withhold records under Exemption (f). I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Department would provide a supplemental response to Mr. Greve. 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.

Martha J. DeM aio SPRl 7/1705 Page 4 December 18, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Greve