Kathleen B. Boundy v. Boston, City of - Public Schools (SPR 20180158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 20,20 18 SPR181158 Alissa Ocasio, Esq. Legal Advisor City of Boston - Public Schools 2300 Washington Street Roxbury, MA 02 11 9 Dear Attorney Ocasio: I have received the petition of Kathleen B. Boundy of the Center for Law and Education appealing the response of the City of Boston (City) - Public Schools (School) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Boundy requested a copy of: 1. By school, the number of the School's student incident reports that have been forwarded or otherwise provided to the Boston Regional Intelligence Center (BRIC) during the past three (3) years; 2. Any such incident reports forwarded or provided to BRIC, with student names redacted; 3. Any memoranda of understanding between the City's Police Department (Department) and the School or between the Department and any school regarding School and police arrangements and student record sharing; 4. Details of any School instructions, as well as any policies, protocols, and/or circulars governing use of the label 'gang member,' 'gang associate' or 'gang affiliate' by the School employees and subcontractors with the School; and 5. Any request(s) or reports of request(s) by the Department seeking the names of English Language Learner students from the Office of English Language Learners, and for each request, the response, including, if such names were turned over and under what standard. A January 23,2018 response was provided to Ms. Boundy informing her that the School has no records responsive to her Request Numbers 1,3,4 and 5. The January 23rdr esponse also states that the School has records responsive to Request Number 2, however, the School is withholding those records pursuant to Exemption (f) of the Public Records Law. Ms. Boundy appealed the January 23rdr esponse regarding Requests Numbers 1 and 2. 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

Alissa Ocasio, Esq. Page 2 February 20,201 8 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 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, 5 10(b)(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). The School's January 23rdr esponse Request Number 1 In its January 23rdr esponse to Ms. Boundy's request for "the number of school incident reports that have been forwarded or provided to the BRIC during the past three years," the School stated that "[tlhe City is not in possession of any such records, lists or databases." However, in her February 5thp etition, Ms. Boundy contends that the School Police, which is part of both the School and the City, maintains a database titled, "Boston School Police Department of Safety Services, Incident Report System." She indicates that officers of the School Police enter student school incident reports into this database, and that at least one of the reports in this database states that the incident discussed in the report will also be sent to the BRIC. Therefore, Ms. Boundy believes that the School has an obligation to search the Incident Report System database for reports mentioning the BRIC, and to provide her with the number of reports. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 1O (a)(ii). Consequently, the number of reports that may have been provided to the BRIC within the past three years, in whatever form it may currently exist, would be responsive to Ms. Boundy's request. It is unclear why the School cannot search the Incident Report System database to cull the number of reports that were sent to the BRIC. I find that the School has not met its burden in properly responding to Ms. Boundy's Request Number 1. 0 Exemption Request.Number 2 - Ms. Boundy's Request Number 2 is for "[alny such incident reports forwarded or

Alissa Ocasio, Esq. Page 3 February 20,201 8 provided to BRIC, with student names redacted." The School denied access to these records under 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 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 (1 976). 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 Cornrn'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." Reinstein, 378 Mass. at 289-90. The School's January 23rdr esponse states that BRIC "collects, analyzes and disseminates strategic and tactical intelligence to reduce crime and counter terrorism in the Boston-Metro area." You further note that "[dlue to the sensitive nature of the request, the City cannot confirm or deny the existence of the records at this time as it could reveal information that would lead to the disclosure of intelligence sources and methods." The School also states that if the records exist, "the Investigatory Exemption would apply as disclosure could severely impede law enforcement investigations, such as homicides and threats to public safety." Furthermore, the School believes that disclosure "could significantly interfere with, compromise or delay on-going investigative and prosecutorial efforts by local, state and federal law enforcement as it could potentially alert potential suspects to the activities of law enforcement officials." The School did not meet its burden to identify whether it actually possesses the requested reports. G. L. c. 66, 5 lO(b)(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"). The School is not permitted to issue a blanket denial without providing any further information with respect to the existence of the requested records.

Alissa Ocasio, Esq. Page 4 February 20,20 18 Further, Ms. Boundy requested reports with redaction of personally identifiable information of students; however, the School contends that even if the reports are heavily redacted, there is a risk of directly or indirectly identifying witnesses and victims. However, the School has not established how indirect identification would occur. 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. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Further, it is unclear what type of information is contained in the responsive records, nor is it clear how disclosure of this information "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 find that the School has not met its burden to withhold responsive records under Exemption (f) in their entirety. Conclusion Accordingly, the School is ordered to provide Ms. Boundy with responsive records 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathleen B. Boundy Sarah Onori, Esq.