Peter M. Chamberlin v. Fall River, City of - Police Department (SPR 20180910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3, 2018 SPRlS/910 Christine Matton Fall River Police Department Office of the Chief of Police 685 Pleasant Street Fall River, MA 02721-4305 Dear Ms. Matton: I have received the petition of Peter Chamberlin appealing the response of the Fall River 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. Chamberlain requested "a copy of any and all CD's and DVD's in [an identified] incident report." The Department denied his request, claiming that the responsive record exempt from disclosure pursuant to the CORI Act and Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). 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); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Christine Matton SPR18/910 Page 2 July 3, 2018 The Department's June st1t and June 22nd responses In its June gth response, the Department indicates it "must respectfully deny [Mr. Chamberlin's] request as pursuant to M.G.L. c.4§7(26(f) which permits withholding of identifiable information to assure confidentiality to victims and private citizens so that they will speak openly about matters that have been investigated along with the fact that releasing such information would create a grave risk directly or indirectly to the victim and identification ofa private citizen who volunteers as a witness are always indefinitely exempt and also M.G.L. c.4§ 7 (26( a) which permits withholding ofp ersonal information of individuals that is considered CORI information such as dates ofb irth, phone numbers, social security numbers, etc." On June 22nd the Department provided another response to this office in support of its Exemption (f) claim. In its response, the Department indicates that it is "unable to 'redact' the CD's and DVD's with just the audio as [the Department doesn't] have that capability. [The Department does] not have any redacted copies of the items that [Mr. Chamberlin] has requested in [its] possession. The items [the Department has] include witnesses and information that are related to [Mr. Chamberlin's] case. Therefore, [the Department] used exemption (f) to protect the witnesses that are linked to this case." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Christine Matton SPR18/910 Page 3 July 3, 2018 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)(£). 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's responses did not contain the specificity required in a denial of access to public records. Instead, the Department merely cites Exemption (a) without any further explanation as to the exemption's applicability to the requested records. The Department is not

Christine Matton SPR18/910 Page 4 July 3, 2018 permitted to issue a blanket denial without providing any further information with respect to the requested records. With respect to its Exemption (f) claim, despite its supplemental response, the Department has failed to meet its burden to permit withholding of the record under this exemption. Specifically, it remains unclear why the Department cannot redact or otherwise alter the records to protect the witnesses' identities. The Department's redaction capabilities or lack thereof do not relieve it of its obligations to comply with requests for records. The Department may wish to seek assistance from a third party vendor in order to complete this request for records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Chamberlin 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Chamberlin