John J. Morrissey v. Boston, City of - Police Department (SPR 20181215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 28, 2018 SPR18/1215 Martha DeMaio Boston Police Department Boston, MA 02120-2014 Dear Ms. DeMaio: I have received the petition of John J. Morrissey, Esq. of Morrissey, Wilson & Zafiropoulos, LLP appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Morrissey requested: 1. Copies 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 that resulted in the death of [a specifically identified person] and the events leading up to the collision; and 2. 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 [a specifically identified person]. Previous appeal The responsive records were the subject of a previous appeal. See SPRl 8/1020 Determination of the Supervisor of Records (Supervisor) (July 25, 2018). In my July 25th determination, I ordered the Department to provide Attorney Morrissey with a supplemental response concerning the Department's Exemption (f) claim to withhold the responsive records. In an August 6, 2018 supplemental response, Katherine Sarmini Hoffman in the Office of the Legal Advisor informed Attorney Morrissey that the records are the subject of an open and ongoing investigation by the Department and the Suffolk County District Attorney's Office. The Department further indicates that at the time of this supplemental response, the District Attorney was presenting this investigation to the Grand Jury for potential indictment. As a result of the 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 SPR18/1215 Page 2 August 28, 2018 August 6th response, Attorney Morrissey petitioned the Supervisor and the current appeal, SPR18/1215, was opened. In his August 14th petition, Attorney Morrissey indicates that the Department has not satisfied its burden of proving with specificity its exemption claim, and has not identified any records responsive to his request. 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). 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, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290.

Martha DeMaio SPRlS/1215 Page 3 August 28, 2018 In an August 2ih conversation, the City of Boston's Director of Public Records and Records Access Officer, Shawn A. Williams, Esq., informed a Public Records Division staff attorney that the Department is involved in an ongoing criminal investigation and that the records are the subject of active criminal litigation regarding the motor vehicle incident that resulted in the death of the identified person described in Attorney Morrissey's request. In an August 28th response sent to Attorney Morrissey and copied to this office, Attorney Williams indicates, "[d]isclosure ofresponsive records would be harmful to investigative efforts by both the Boston Police Department and the Suffolk County District Attorney's Office. The docket number. of this matter is 18 84CR00648. The arraignment is scheduled for August 29th with a charge of one count of negligent motor vehicle homicide." Given that the Department has provided this office with further information that the responsive records are the subject of an active criminal prosecution in Suffolk County Superior Court regarding the motor vehicle homicide that occurred, and that the on-going criminal litigation will be prejudiced by disclosure of the records to the public, I find that the Department has met its burden of specificity in withholding the records under Exemption (f). Status of the requester In his August 14th petition, Attorney Morrissey asserts, "it also bears repeating, this request seeks records concerning the investigation of a fatal motor vehicle collision on behalf of the family of the deceased." It is important for Attorney Morrissey to understand that his interest as a representative of the family of the identified individual does not afford him any greater right of access to the requested records under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Morrissey' s status will play no role in a determination as to whether the records should be disclosed to the public. Conclusion Accordingly, given that the Department has demonstrated the requested records are the subject of an active criminal prosecution regarding the motor vehicle collision, I find that the Department has met its burden of specificity in withholding the responsive records pursuant to Exemption (f). I consider this administrative appeal closed.

Martha DeMaio SPR18/1215 Page 4 August 28, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Morrissey, Esq. Shawn A. Williams, Esq.