Patrick J. Mason v. Tewksbury, Town of - Police Department (SPR 20180633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 16, 2018 SPR18/633 John S. Votto Deputy Chief of Operations Town of Tewksbury Police Department 918 Main Street Tewksbury, MA 01876 Dear Deputy ChiefVotto: I have received the petition of Patrick J. Mason of The Mason Group appealing the response of the Town of Tewksbury (Town) Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mason requested a copy of: "all records, including the daily log, incident report, 911 audio recording, radio transmissions and photographs pertaining to a pedestrian and motor vehicle accident on November 6, 2016 at an identified location in the Town." The Department denied Mr. Mason's request, in its entirety, pursuant to Exemption (f) of the Public Records Law. As a result, Mr. Mason 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, § 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 ... "); 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

Deputy Chief John S. Votto SPR18/633 Page2 May 16, 2018 The Department's April 30, 2018 response The Department's April 30th response indicates that the Department is withholding records, in their entirety, pursuant to Exemption (f), due to an on-going investigation by Assistant District Attorney Melissa Baima in the Office of the District Attorney in Middlesex County (District Attorney). Exemption (I) 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, 3 71 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. The Department's April 30th response indicated that the District Attorney is still actively investigating the incident. In a May 16th discussion, you explained to a Public Records Division attorney that the accident involved a motor vehicle driver and a pedestrian, who died as a result of the accident. As explained in your April response, to date, an accident reconstruction report has not been completed. You informed this office that because a death occurred at the scene of the accident, the Department of State Police (State Police) is required to investigate and issue an accident reconstruction report. The Department posits that if any information is disclosed at this time, before the reconstruction report is completed by the State Police and before the District Attorney makes a disposition on the investigation regarding whether any fault or criminal charges are issued, the decision on this matter may be prejudiced. The Department also contends that disclosure of any records or information prior to the District Attorney's decision could also taint witness testimony and the possible jury pool. A Public Records Division attorney asked what records the Department has in its

Deputy Chief John S. V otto SPR18/633 Page 3 May 16, 2018 possession, such as a 911 audio recording or dispatch record, or even an initial incident report that could be provided, in redacted format, to Mr. Mason. In accordance with the Public Records 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, in a response to Mr. Mason, whether it possesses all the records responsive to his request. G. L. c. 66, § 1O (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"). Exemption (f) may not be used as a blanket exemption for the withholding of all records responsive to Mr. Mason's request. 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 to Mr. Mason. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature.) After the May 16th telephone discussion with you, this same Public Records Division attorney contacted the District Attorney to discuss the status of the investigation concerning the accident, the requested records and this public records appeal. Unable to connect with Assistant District Attorney Baima directly, a detailed voicemail message was left for Attorney Baima. 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. Mason 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, ~.~ Supervisor of Records cc: Patrick J. Mason Melissa Baima, Esq.