Brooks A. Ames v. Brookline, Town of - Police Department (SPR 20181614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 16, 2018 SPRlS/1614 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, § IOA; 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 appeals This request was the subject of previous appeals. See SPRl 8/1210 Determination of the Supervisor of Records (August 27, 2018); SPR18/1458 Determination of the Supervisor of Records (October 15, 2018). In my October 15th determination I ordered the Town to provide Attorney Ames a response to his request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Lt. Paul Campbell of the Brookline Police Department (Department) provided a response dated October 24, 2018 that provides additional information regarding the Town's Exemption (f) claim. Attorney Ames appealed and SPR18/1614 was opened as a result. 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 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. SPR18/1614 Page 2 November 16, 2018 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 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 In his current appeal petition Attorney Ames indicates "I wish to appeal the continued redaction of identifying information concerning the driver of the motor vehicle who was cited for leaving the scene of an accident." In its October 24th response the Department asserts "[t]he reports have been redacted to withhold information in the reports that identifies or tends to identify non-police officer, voluntary witnesses to the referenced incident pursuant to exemptions (c) and (f) oftlie puoffc recoras faw." Exemption (j) 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.

Patrick Ward, Esq. SPR18/1614 Page 3 November 16, 2018 Lt. Campbell indicates that "[i]n this case, the subject whose identity is being sought is a voluntary and key witness in an internal affairs investigation which resulted in substantial discipline to a police officer." He also notes that "[t]he name of the subject, who voluntarily participated in the internal affairs investigation, has not been disclosed publicly in any manner, and remains private. The subject's identity is not available publicly in any forum." The Department asserts that "[i]f a person knows that cooperating with an internal investigation under these circumstances will result in public scrutiny and publication of their identity in the media and elsewhere (which is likely to happen in this case), people can be expected to decline to cooperate with internal investigations. Internal investigations are critical to the goal of providing effective law enforcement, and are also in the public interest." In light of the Department's October 24th response that explains how the redacted name at issue is that of a voluntary witness, I find it has met its burden to justify this redaction under Exemption (f). See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9, n.8 (2003) (indicating that the investigatory exemption may be applied to internal investigation records in order to promote candor in dealings with investigators). As a result, it is unnecessary to opine on the Department's Exemption ( c) claim. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Ames, Esq.