Anne V. Poulos v. Billerica, Town of - Police Department (SPR 20180591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2018 SPRlS/591 Sergeant John Zarro Town of Billerica-Police Department 6 Good Street Billerica, MA O1 821 Dear Sergeant Zarro: I have received the petition of Anne Poulos, Esq. on behalf of Robert Murphy, Esq. both of Murphy & Riley, P. C., appealing the response of the Town of Billerica Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 24, 2018, Attorney Murphy requested" ... copies of any and all documents or reports relating to the [Department's] response to an incident occurring on May 3, 2017 at the Lynnway Auto Auction ... " Attorney Murphy mentioned that the records should include, but not limited to, "1. 911 audio recordings; 2. Police Reports; 3. Photographs of the scene; 4. Video of the scene; 5. Incident reports; 6. Dispatch logs; 7. Narratives by any and all Officers; 8. Notes; 9. Ambulance records; 10. Statements by any parties or witness; 11. Copies of any and all citations issued; and 12. Correspondence." On January 29, 2018, the Department provided a response indicating that Attorney Murphy's request has been denied pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Attorney Poulos petitioned this office and this appeal, SPR18/591, was opened as a result. 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 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

Sergeant John Zarro SPR18/591 Page 2 May 14, 2018 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January 29th response In its January 29, 2018 response, the Department indicated that Attorney Murphy's request is being denied under Exemption (f), because "the incident is currently still under investigation by the Middlesex District Attorney's office." The Department informed Attorney Murphy that "[t]his case is an ongoing investigation" and directed him to contact the District Attorney's Office. Exemption (I) The Department claimed it denied access to responsive records pursuant to Exemption (f) of the Public Records Law. 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.

Sergeant John Zarro SPR18/591 Page 3 May 14, 2018 Burden of specificity; segregable portions 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, § 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. Further, the Department's initial response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Additionally, the Department has failed to meet its burden of explaining with specificity how the records, in their entirety, are 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). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Attorney Poulos with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Sergeant John Zarro SPR18/591 Page4 May 14, 2018 Sincerely, ~ a y ~ Supervisor of Records cc: Anne Poulos, Esq.