Susan T. Munford v. Plymouth County Sheriff's Office (SPR 20180255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 15, 2018 SPRlS/255 Patrick Lee, Esq. General Counsel Plymouth County Sheriffs Department 24 Long Pond Rd. Plymouth, MA 02360 Dear Attorney Lee: I have received the petition of Ms. Susan Munford appealing the response of the Plymouth County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § IOA~ see also950CM.R.32.08(1).0n·Septem:oer,·2t)t7,Ms.Munfordrequesteda-certain video. Ms. Munford did not receive a response and sent another request on January 26, 2018 to the Department. On February 20, 2018 the Department responded to Ms. Munford declining to produce the requested record. Ms. Munford appealed the Department's response in a February 26, 2018 letter. Subsequently, the Department provided a supplement response to Ms. Munford on March 9, 2018 citing Exemption (f) for the withholding of the requested records. 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. G. L. c. 66, § lO(b)(iv). Exemption (I) 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

Patrick Lee, Esq. SPR18/255 Page 2 March 15, 2018 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 Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 ..." ); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden to provide the specific reasons for withholding the records pursuant to Exemption (f). Additionally, the Department has not demonstrated how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 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). In particular it is not clear what is depicted, or how disclosure would "prejudice effective law enforcement" as required by Exemption (f). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii).

Patrick Lee, Esq. SPR18/255 Page 3 March 15, 2018 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. Ms. Munford may appeal the substantive nature of the revised response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~urr~ Supervisor of Records cc: Ms. Susan Munford