John J. Morrissey v. Boston, City of - Police Department (SPR 20181020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 25,2018 SPR1811020 Martha DeMaio Boston Police Department Boston, MA 02 120-20 14 Dear Martha DeMaio: I have received the petition of Attorney John J. Morrissey appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see 950 C.M.R. 32.08(1). Specifically, Attorney Morrissey requested,"[c]opies of all video stored images and photographs from all the cameras located at the intersection of Hyde Park Avenue and Walk Hill Street on September 12,2015 including but not limited to those videos, stored images and pictures of the collision on September 12,2015."Attorney Morrissey also requested a complete copy of all reports, statements, measurements, inspections, pictures, videos and accident reconstruction reports prepared by the Department concerning its investigation of the collision on September 12,2015 that resulted in the death of an identified individual. 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, fj 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, fj 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, 5 11 (1 995) (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, fj 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

Martha DeMaio Page 2 July 25,2018 fl Exemption In its response to Attorney Morrissey dated July 9, 20 18 the Department claims the responsive records are being withheld under 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 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. In the July 9 ' letter the Department writes, "[ilt has come to my attention that the records you have requested relate to an ongoing investigation. As such, the records are privileged and the Department is unable to release the records pursuant to G.L.c 4, 57 (26)(f)." I find that the Department's July 9thr esponse did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemption (f) without any further explanation as to the exemption's applicability to the requested records. Conclusion Accordingly, the Department is hereby ordered to provide Attorney Morrissey with a supplemental response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Attorney Morrissey may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1).

Martha DeMaio Page 3 July 25,201 8 Sincerely, Rebecca S . Murray Supervisor of Records cc: John J. Morrissey, Esq.