Andrew Crouch, Esq. v. Boston, City of - Police Department (SPR 20181704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 29, 2018 SPRlS/1704 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Andrew Crouch, Esq. appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Crouch requested the following records: "l) All records, including statements, interview notes, police reports or notes, transcripts, audio, video, or other documents related to William 'Billy' Scopa. ... This request is limited to the time period of January 1, 2013, to December 31, 2013. 2) All records, including audio, video, police reports or notes, or other documents related to YoBerry ( ... Dorchester Street, South Boston, MA). This request is limited to the time period of July 21, 2013, to July 30, 2013. 3) All records relating to requests for records, including video, audio, or other documents, made by the Boston Police Department or its employees or agents to the Massachusetts Bay Transportation Authority relating to July 23, 2013. Specifically, This request relates to requests made in the case of Commonwealth v. Edwin Alemany." The City provided a response on November 14, 2018, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the City's response, Attorney Crouch petitioned this office and this appeal, SPRl 8/1704, was opened as a result. Purpose ofr equest; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access 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

Shawn A. Williams, Esq. SPR18/1704 Page 2 November 29, 2018 to a record 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 Crouch's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Crouch may wish to consider another means of seeking to obtain any existing responsive records. 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, § 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, § lO(b)(iv); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's November Ji,, response In its November 14, 2018 response, the City states "[i]t is [the City's] understanding that [A ttorney Crouch] represent[ s] Edwin Alemany in active litigation. See https://ma-appellatecourts.org/display_ docket.php?src=party&dno=SJC-12180. As this is a matter under current litigation your request is denied as the records responsive to your request are investigative in nature and relate to ongoing active litigation. G. L. c. 4, s. 7 (26) (f)."

Shawn A. Williams, Esq. SPR18/1704 Page 3 November 29, 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 ofvoh+ntary 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. Based on the City's response, it is unclear what type ofrecords it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer, must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3)(c ) ( 4). Here, the City withheld records without identifying the records. Therefore, the City must identify the type of record( s) it has in its · possession. It is additionally uncertain how the requested records are investigative in nature and how they relate to the ongoing active litigation. The City must clarify these matters. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide Attorney Crouch with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Shawn A. Williams, Esq. SPRlS/1704 Page4 November 29, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Crouch, Esq.