Brooks A. Ames v. Brookline, Town of - Police Department (SPR 20181458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2018 SPRlS/1458 Patrick Ward, Esq. Town Clerk Brookline Town Hall 333 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, § 1 OA; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1210 Determination of the 11 Supervisor of Records (August 27, 2018). In my August 2i determination I ordered the Town to review the requested records, redact where necessary, and provide Attorney Ames with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Neil Harrington of the Brookline Police Department (Department) responded on September 14, 2018 by providing additional records with portions redacted under Exemptions (a), (c), and (f) of the Public Records Law. The Town also assessed a fee for the production of records. G. L. c. 4, § 7(26)(a), (c), (f). Attorney Ames appealed and SPR18/1458 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR18/1458 Page 2 October 15, 2018 governmental records are public records. G. L. c. 66, § IOA(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, § IO(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 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, § IO(b)(iv). Current appeal Attorney Ames' initial appeal was related to the Town's response to requests 1, 3, and 6. In its September 14th response the Town provided incident reports, recorded radio transmissions and 911 calls, as well as photographs relating to the reported motor vehicle collision. With respect to responsive incident reports, the Town indicates they were redacted "to withhold information in the report that identifies or tends to identify any non-police officer, civilian individuals and witnesses who were involved in the referenced incident pursuant to exemptions (c) and (f) of the public records law." Mr. Harrington also notes that this information "is withheld from disclosure because disclosure is likely to compromise both the privacy of these individuals and effective law enforcement. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976)." The Town produced additional reports and indicates "[t]hese reports are similarly redacted to withhold the same civilian witness information on the same basis, in addition to information that is exempt from disclosure pursuant to exemption (a) of the public records law and G.L. c. 66, s. IOB." In a supplemental response dated September 27, 2018, the Town asserts "[t]he records that were provided to Mr. Ames inadvertently omitted the name of the off duty state police officer who was involved in the incident that is the subject of the report. His name is Seth Newman. The remaining individuals are civilian witnesses in an Internal Affairs investigation conducted by the Department." In his current appeal petition Attorney Ames indicates that the Town "continues to redact the identity of the driver who received a citation from the Brookline police from the police report in spite of the Supervisor's prior order requiring disclosure." Attorney Ames also asserts "[t]he claimed exemptions continue to be baseless as applied to the driver who received a citation for the criminal offense of leaving the scene of an accident."

Patrick Ward, Esq. SPR18/1458 Page 3 October 15, 2018 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). 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. I find it unclear whether the redacted name at issue, specifically of "the driver who received a citation for the criminal offense of leaving the scene of an accident" is that of a voluntary witness that may be withheld under Exemption (f) or Exemption (c). See G. L. c. 66, § 1 O(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 based. ...) ; Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Conclusion Accordingly the Town is ordered to provide Attorney Ames a response to his request, 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.