Anthony Dew v. Boston, City of - Police Department (SPR 20181308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 12,2018 SPRl811308 City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Anthony Dew appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dew requested, "[d]ocuments on search warrant Docket # 1507SW0176 of all 24 cell phones and 2 computers that the Boston Police Forensic Unit execute the warrant on these cell phones." Mr. Dew included an identified cell phone number; an identified SIN number; and an IMEI number. In an August 20,201 8 response, the Department denied the request under Exemption (f) of the Public Records Law. After receiving the Department's response, Mr. Dew petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 10A(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. Flatlep, 419 Mass. 507, 5 11 (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. One Ashburton Place, Room 1719, Boston, Massachusetts 0210 8 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Martha DeMaio Page 2 September 12,2018 fl Exemption In its August 20, 201 8 response, the Department indicates it is withholding the responsive records pursuant to Exemption (f) due to a pending investigation. 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 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. 28 1,290 n. 18 (1 979). 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 its August 2oth letter, the Department writes, "[tlreated as a public record request, the information contained in a pending investigation is not subject to disclosure under the Investigatory Exemption. See MGL c. 4 5 7(26)(f)." The Department also restates language from Exemption (f) and the court cases that pertain to Exemption (f), such as, "[a] records custodian may withhold any information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials.. ." Finally, the Department cites one of the Supervisor's determinations from 201 7 regarding the withholding of identities of voluntary witnesses, informants or complainants. I find that the Department's August 2oth response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites the language in Exemption (f) and other provisions in the Public Records Law without any explanation concerning the exemption's applicability to the requested records. The Department has not demonstrated that public disclosure of even portions of the records would prejudice any on-going investigation. Therefore, the Department has not met its burden in withholding the responsive records in their entirety under Exemption (f).

Martha DeMaio Page 3 September 12,201 8 Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 lO(b)(iv); see also Globe Newspaper Co. v. Police Conim'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1,289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, 5 lO(a). Accordingly, the Department is ordered to provide Mr. Dew with a supplemental response to the request and its Exemption (f) claim, 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: Anthony Dew Shawn A. Williams, Esq. (via email)