Arthur G. Grenier v. Lawrence, City of - Fire Department (SPR 20171709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 18, 2017 SPR17/1709 James X. Fitzpatrick Chief of Police Lawrence Police Department 90 Lowell Street Lawrence, MA O1 840 Dear Chief Fitzpatrick: I have received the petition of Arthur Grenier appealing the response of the City of Lawrence 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. Grenier requested a copy of the following records: • Tow log for August 29, 2017 at 112 Jackson Street by Valley Towing, and information on the vehicle plate number discrepancy of the two vehicles towed and listed in a report; • Vehicle plate numbers, vehicle identification numbers, owners names and addresses, tow reports and/or tow sheets and inventory report; and • Department policy and procedure for towing and inventory of motor vehicles. Petitions to the Supervisor of Records Mr. Grenier is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide to the Supervisor complete copies of all correspondence associated with the petition, including all written responses associated with requests subject to the petition for appeal. 950 C.M.R. 32.08(1)(g). Additionally, in petitioning the Supervisor, the requester shall provide a copy of such petition to the Records Access Officer (RAO). 950 C.M.R. 32.08(1)(h). An attorney in the Public Records Division provided the Department with a copy of the appeal file, including Mr. Grenier's petition to the Supervisor, and telephoned Officer Eugene Scanlon, the Department's RAO, to discuss this matter. It is my understanding that Officer Scanlon is out of the office until January 2018. Therefore, the Department is advised to assign 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 James X. Fitzpatrick SPR17/1709 Page 2 December 18, 2017 alternate personnel to respond to public records requests and public records administrative appeals in Officer Scanlon's absence. 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. The Department's December 1h response ih In Officer Scanlon's December response he indicates, "[i]nformation on incident 17006373 is currently an open firearms investigation and under Exemption (f) of the Public Records Law, the records cannot be produced at this time." Exemption (f) 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, 378 Mass. at 290 n.18. Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such

Chief James X. Fitzpatrick SPRl 7/1709 Page 3 December 18, 2017 disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Department has not demonstrated how disclosure of the contents of the responsive records, in part or in whole, would so prejudice the possibility of effective law enforcement that their disclosure is not in the public interest. Further, any identifying information concerning any witnesses, including those who may have cooperated in the investigation could be redacted. See Antell, 52 Mass. App. Ct. at 248. I find that the Department has not met its burden of demonstrating how the records are exempt from disclosure, in their entirety, under Exemption (f). Burden of specificity -Duty to segregate The Department has not met its burden of claiming Exemption (f) with specificity, or stating what particular records the Department has that are responsive to Mr. Grenier's request. The Public Records Law states that the "burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. A custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. See G. L. c. 66, § lO(a). The Department also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). Conclusion It is my understanding that an attorney in the Public Records Division contacted you by telephone to discuss the appeal. Accordingly, the Department is hereby ordered to provide Mr. Grenier 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. Grenier may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, f!JwA~ Rebecca S. Murray Supervisor of Records cc: Arthur Grenier Officer Eugene Scanlon