Gregory A. Pugh, Jr. v. Watertown, City of - Police Department (SPR 20180796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15,2018 SPR181796 Lt. James P O'Connor City of Watertown Police Department 552 Main St Watertown, MA 02472 Dear Lt. O'Connor: I have received a petition from Gregory A. Pugh, Jr. appealing the response from the City of Watertown's Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Pugh made a public records request on May 3,2018 to the Department requesting all records related to an identified individual from 201 5 to the present and all incident reports related to a certain address from 201 5 to the present. The Department provided a response on May 23,201 8 stating the requested information "clearly relates to an on- going investigation" and cited Exemption (f) for the withholding of documents. Mr. Pugh appealed the Department's response to this office via email on June 3,2018. 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, 5 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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(b)(iv). One Ashburton Place, Room 1719 , Boston, Massachusetts 02 108 (61 7) 727-2832. Fax: (617) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Lt. James P O'Connor Page 2 June 15,2018 03 Exemption 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 (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 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." 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, $ 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 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 51 1. The Department did not meet its burden to provide the specific reasons for withholding the records pursuant to Exemption (f). See G. L. c. 66, 9 lO(b)(iv). The Department did not explain how the exemption applies to allow the withholding of the requested records. Additionally, the Department has not demonstrated how the record, in its entirety, is exempt from disclosure. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, $ 10(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 of records at the time of the request. See G. L. c. 66, $ lO(a)(ii), (b)(ii).

Lt. James P O'Connor Page 3 June 15,2018 Conclusion Accordingly, the Department is ordered to review the requested records, redact where necessary and 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. Sincerely, w Rebecca S. Murray Supervisor of Records cc: Mr. Gregory A. Pugh, Jr.