Arthur G. Grenier v. Lowell, City of - Law Department (SPR 20180622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 16,2018 SPR18/622 Hannah Pappenheim, Esq. Assistant City Solicitor City of Lowell - Law Department 375 Merrimack Street, 3r Floor Lowell, MA 01852 Dear Attorney Pappenheim: I have received the petition of Arthur Grenier appealing the response of the City of Lowell Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Grenier requested a copy of: CAD reports, dispatcher narratives, incident reports and arrest reports pertaining to an identified address in the City of Lowell. The Department denied the request, in its entirety, pursuant to Exemption (f) of the Public Records Law due to an on-going investigation. As a result, Mr. Grenier 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, § 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) (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 ... "); 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). 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

Hannah Pappenheim, Esq. SPR18/622 Page 2 May 16, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 March 19, 2018 response In its March 19th response, the Department indicated that due to an on-going criminal investigation, disclosure of the requested records could prejudice effective law enforcement efforts, and it would not be in the public interest to release the records at this time. The Department claimed Exemption (f) to withhold the records in their entirety. 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 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, 3 78 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. The Department has not established how the investigation remains active and on-going, and how disclosure of any of the responsive records, even in redacted format, will prejudice effective law enforcement. Exemption (f) may not be used as a blanket exemption for the withholding of all records responsive to Mr. Grenier's request. 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, § IO(a). Furthermore, it is unclear which responsive records in Mr. Grenier's request exist and are in the possession, custody and control of the Department. In accordance with the Public Records

Hannah Pappenheim, Esq. SPR18/622 Page 3 May 16, 2018 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 whether it possesses all the responsive records, and if so provide the records to Mr. Grenier. 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"). I understand that a Public Records Division attorney contacted you regarding this appeal. Conclusion Accordingly, given that the Department did not meet its burden of specificity in claiming Exemption (f), the Department may not withhold the requested records. The Department is hereby ordered to review the records, redact where necessary, and provide Mr. Grenier with the responsive records, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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 request reconsideration of this determination within ten business days. Sincerely, ~a~ Supervisor of Records cc: Arthur Grenier