Thomas Relihan v. Raynham Police Department (SPR 20180008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2018 SPR18/008 Lt. David LaPlante Records Access Officer Raynham Police Department 5 3 Orchard St Raynham, MA 02767 Lt. LaPlante: I have received the petition of Thomas Relihan of The Enterprise appealing the response of the Raynham 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. Relihan requested "[a]ll video footage or still images in the department's possession, including that from local surveillance cameras and/or dashboard cameras in department vehicles, depicting a crash that occurred on Nov. 28, 2017 near Broadway and Britton Street following a police chase originating in Easton." Mr. Relihan also requested "[a] copy of the motor vehicle crash report from the same incident." The Department · sent a response to Mr. Relihan's request on December 12, 2017 citing Exemption (f) of the Public Records Law. 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, § lO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based .... "); 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 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

Lt. David LaPlante SPR18/008 Page 2 January 18, 2018 withheld or redacted portion of the responsive record. G. L. c. 66, § lO(b)(iv). Exemption (I) 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, 378 Mass. at 289-90. Appeal In the Department's December li11 response you assert, "[t]he records requested contained information that may interfere with an ongoing investigation and/or Grand Jury investigation currently being conducted by the Bristol County District Attorney's Office." The Department did not meet its burden to withhold documents pertaining to the investigation at issue pursuant to Exemption (f). In particular, the Department has not established how this investigation remains ongoing and how disclosure would prejudice effective law enforcement. Exemption (f) may not be used as a blanket exemption for the withholding of all records pertaining to an investigation. 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.) Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a), C Also, it is unclear which responsive records exist, including "a copy of the motor vehicle crash report from the same incident." In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). The Department must confirm

Lt. David LaPlante SPR18/008 Page 3 January 18, 2018 whether it possesses such records, and if so provide the records to Mr. Relihan. G. L. c. 66, § lO(a)(ii) (a written response shall "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves"). Conclusion Accordingly, the Department is ordered to produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Relihan