Kiera Blessing v. Haverhill, City of - Police Department (SPR 20181337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords September 17,201 8 SPR1811337 Laurie A. Brown Records Clerk City of Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 0 1830 Dear Ms. Brown: I have received the petition of Kiera Blessing of The Eagle-Tribune appealing the response of the City of Haverhill Police Department (Department) to a request for public records. G. L. c. 66, fj 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Blessing requested a copy of an identified report. (0 The Department withheld the report under Exemption of the Public Records Law due to an open and ongoing investigation. As a result, Ms. Blessing 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 1O A(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, 5 lO(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 see exemption or exemptions upon which the withholding is based.. ." ); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Laurie A. Brown Page 2 September 17, 201 8 The Department's September 4,2018 and September 14,2018 responses In its September 4,201 8 response, the Department indicates it is withholding the responsive report pursuant to Exemption (f) due to an open and ongoing investigation. After this appeal was opened, the Department, through its City Solicitor William D. Cox, Jr., Esq., provided a September 1 4s~upp~le mental response regarding its Exemption (f) claim to withhold the entire report. Exemption O) 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." Reinstein, 378 Mass. at 289-90. The Department's initial response on September 4th did not contain the specificity required in a denial of access to public records. The Department has not demonstrated that public disclosure of even portions of the report would prejudice any on-going investigation. Therefore, the Department did not meet its burden of specificity in withholding the responsive report in its (0. entirety under Exemption Its September 14ths upplemental response indicates that the Department will withhold the entire report under Exemption (f) due to the ongoing investigation of the incident. In his September 14thr esponse, Attorney Cox asserts, "[slimply put, failing to redact exempt information from this report at this time would seriously compromise the ongoing police investigation into this matter. The [Department] is actively involved in attempting to identify suspects for the criminal acts which occurred just ten (10) days ago. Disclosure of the exempt

Laurie A. Brown Page 3 September 17,201 8 information would provide the perpetrators with the information that the Department currently knows and what they don't know as of yet, as well as the sources of the information." Attorney Cox also informed a Public Records Division attorney that if the City redacts the report the result would be to provide Ms. Blessing with the same information that she has already received with the production of the Daily Log. Attorney Cox asserts, "[tlhe utilization of this exemption under the circumstances is exactly what the Legislature had in mind when they included it, and, exactly what the Courts have found to be a correct application." After a review of its September 4t'1 and September 14'~re sponses, the Department has not meet its burden of demonstrating that the responsive report, in its entirety, is exempt from disclosure under Exemption (f). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the incident report. G. L. c. 66, 5 lO(a). Order Given that the Department did not meet its burden in withholding the entire report under Exemption (f), the Department is ordered to provide a response to Ms. Blessing 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: Kiera Blessing William D. Cox, Jr., Esq.