Brooks A. Ames v. Brookline, Town of (SPR 20181210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 27, 2018 SPR18/1210 Patrick Ward, Esq. Town Clerk Brookline Town Hall 3 3 3 Washington Street, Room 104 Brookline, MA 02445-6853 Dear Attorney Ward: I have received the petition of Brooks Ames, Esq. appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ames requested "records regarding the incident involving [an identified Brookline police officer], which was the lead story in yesterday's Brookline TAB. In particular, please provide: 1) all police reports regarding the incident; 2) all CAD reports regarding the incident; 3) all radio transmission recordings and 911 calls regarding the incident; 4) all surveillance video regarding the incident; 5) any citizen complaints and office of professional responsibility reports regarding officer Stephen Burke; 6) any photographs relating to the alleged accident in question." The Town responded on August 10, 2018 by providing redacted copies of certain responsive records and withholding others under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7 (26)( c) , (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, § lO(b)(iv) (a written response shall "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 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

Patrick Ward, Esq. SPR18/1210 Page2 August 27, 2018 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). 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, § lO(b )(iv). Current appeal It is my understanding that Attorney Ames is appealing the Department's response to requests 1, 3, and 6. Request I In its August 1o th response the Department provided a redacted copy of the "Brookline Police Department Incident Report" dated July 18, 2018. You note that this report "is redacted to withhold the names and addresses of witnesses under exemption (c) of the public records law." You also indicate that "[c]opies of the remaining police department reports concerning the incident are withheld from disclosure under exemption (f) of the Public Records law, because their disclosure at this time is likely to compromise the investigation of the incident and effective law enforcement relating to the matter." In his appeal petition Attorney Ames indicates "[t]he first page of the incident report was withheld without explanation and names are redacted in the pages of the report itself pursuant to Exemption c. The effect is to withhold the names of persons involved in the incident, including the name of the off duty state trooper who purportedly assisted [the named individual] and the name of the individual who was cited for allegedly leaving the scene of an accident, failing to stop for pedestrians in a crosswalk, and failing to stop at a red light." Attorney Ames asserts that these names "are not protected by Exemption c and should be produced along with the first page of the report. They are not personnel records or medical records and their disclosure does not constitute an unwarranted invasion of privacy." Request 3 With respect to request 3, the Town indicates "[c]opies of the recorded radio transmissions and 911 calls concerning the incident are withheld from disclosure under exemption (f) of the Public Records law because disclosure at this time is likely to compromise the ongoing investigation of the incident and effective law enforcement relating to the matter." In his appeal petition Attorney Ames indicates "[t]o the extent the Town is concerned that identifying civilian witnesses may discourage reporting to the police, it may redact identifying information from the civilian 911 calls." However, he also asserts "[w]ithholding the calls entirely is not justified. The incident occurred 26 days ago and [the identified individual] has already been questioned according to the police report produced. The 911 calls and radio transmissions should be produced as not falling within Exemption f."

Patrick Ward, Esq. SPR18/1210 Page 3 August 27, 2018 Request 6 The Town withheld "[i]nvestigative photographs relating to the reported motor vehicle collision" under Exemption (f) "because their disclosure at this time is likely to compromise the ongoing investigation of the incident and effective law enforcement relating to the matter." Attorney Ames asserts that the investigation of this incident "does not appear to be ongoing as the driver was cited and summoned to court for the alleged offense." He also notes "[i]n any event, the evidence presented in support of probable cause for a criminal complaint of leaving the scene of property damage is a public record and there is no reason to believe that its production would jeopardize any continuing investigation." Burden of specificity 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, 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. With respect to request 1, based on its August 1o th response, I find the Department has not met its burden to demonstrate how all of the redacted names are those of voluntary witnesses that may be withheld under Exemption (f) or Exemption (c). See G. L. c. 66, § lO(b)(iv) (a written response shall "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

Patrick Ward, Esq. SPR18/1210 Page 4 August 27, 2018 based. ...) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I also find it has not met its burden to withhold the remaining Department reports concerning the incident under Exemption (f) in their entirety. See Reinstein, 378 Mass. at 289-90 (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, § lO(a). With respect to request 3, I find the Department has not met its burden to withhold the recorded radio transmissions and 911 calls concerning the incident in their entirety under Exemption (f). See G. L. c. 66, § lO(a). Similarly, with respect to request 6, I find the Department has not met its burden to withhold responsive investigative photographs in their entirety under Exemption (f), particularly because it has not demonstrated how their release would "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). Conclusion Given that the Department did not meet its burden to explain how an exemption applies to all the redacted and/or withheld records, the Department is ordered to review the requested records, redact where necessary, and provide Attorney Ames with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Ames, Esq.