Cody Shepard v. East Bridgewater Police Department (SPR 20180067)

The Commonwealth of Massachusetts William Francis Calvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 30,20 18 SPR181067 Scott C. Allen Chief of Police Town of East Bridgewater Police Department 153 Central Street, P.O. Box 475 East Bridgewater, MA 023 3 3 Dear Chief Allen: I have received the petition of Cody Shepard of The Brockton Enterprise appealing the response of the Town of East Bridgewater Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Shephard requested: 1. The total number of police responses to 3 Satucket Avenue between May 1,2004 and December 1,201 5, including the number and types of each call; 2. Any incident reports regarding police responses for hazardous material incidents to 3 Satucket Avenue between May 1,2004 and December l,201 5; 3. Any 9 1 1 audio recordings made by an identified person or another identified person at 3 Satucket Avenue, between May 1,2004 and December 1,2015 ; and 4. Any incident and supplemental reports related to a police response to 3 Satucket Avenue on March 10 ,201 3 . On January 4,201 8, the Department denied Mr. Shepard's public records request, in its entirety, pursuant to Exemption (f) of the Public Records Law. As a result, Mr. Shepard petitioned the Supervisor of Records, and this appeal was opened. 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, 5 10A(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, 5 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 Scott C. Allen Page 2 January 30 ,201 8 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, 8 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, fj lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, Ej lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 C.M.R. 32.06(4). To assist in requesting and responding to requests for public records please refer to our 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, Public Records Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The Department's January 4thr esponse Your January 4'" response states that given the records are directly related to an open, on- going law enforcement investigation, disclosure would greatly prejudice the possibility of effective law enforcement and disclosure is not in the public interest. Therefore, the Department is withholding all the requested records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Exemption 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 A custodian of records generally must demonstrate a prejudice to investigative efforts in

Chief Scott C. Allen Page 3 January 30,20 18 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1,290 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 id. at 289-90. In a January 26" discussion with the Department's Legal Counsel, Emerson R. Pena of Clifford & Kenny, LLP, an attorney in the Public Records Division explained that the Department had not met its burden under the Public Records Law by applying a blanket exemption claim under Exemption (f), not specifically explaining how disclosure would prejudice an investigation, and not providing the records even in a redacted format. This office informed Attorney Pena that Mr. Shepard requested statistical information concerning the number of dispatch calls and times the Department responded to a particular address, initial incident reports and a 91 1 call recording, and indicated that records should be redacted where necessary so that public portions may be released. Attorney Pena indicated that the Department would re-assess its Exemption (f) claim, segregate and redact the records where necessary under the Public Records Law, and provide records to Mr. Shepard. This office also advised Attorney Pena that if the Department redacts or withholds any records under the Public Records Law, it must provide a detailed response that meets the Department's burden of supporting its redactions and exemption claims with specificity. G. L. c. 66, 5 lO(d)(iv) (written response must "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.. ." ). Duty to segregate exempt material Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, fj 10(a). The Department is advised that it has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). Order Accordingly, the Department is hereby ordered to provide Mr. Shepard with the responsive records, accompanied by a response explaining any redaction of material within the content of the records and any records withheld under the exemptions, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A

Chief Scott C. Allen Page 4 January 30,2018 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. Shepard may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Cody Shepard Emerson Pena, Esq.