MaryEllen LaBarre v. Springfield, City of - Public Schools (SPR 20181864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 12, 2018 SPR18/1864 Anthony Wilson, Esq. City Clerk City of Springfield 36 Court Streets Springfield, MA O1 103 Dear Attorney Wilson: I have received the petition of MaryE llen Labarre appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 10, 2018, Ms. Labarre requested an investigative report of7/9/ 2018 related to auto theft and named "18-7792-0F." The City responded by denying Ms. Labarre' s request. 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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must prov_ide the responsive records. 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

Anthony Wilson, Esq. SPR18/1864 Page 2 December 12, 2018 The Department's October 1 oth Response In its October, 2018 response, the City indicated that it must deny the request "because it believes that the requested records are exempt from disclosure as a public records pursuant to M.G.L. c. 4, § 7(26)(±), also known as the 'Investigatory Exemption."' Exemption (f) The City claimed it withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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)(±). 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. Burden ofs pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 exemption or exemptions upon which the withholding is based ..." ); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find the Department has not met its burden of providing enough detail in its response to withhold responsive records under Exemption (f). While the City claims it withheld responsive records pursuant to Exemption (f), it does not explain the subject of the investigation nor does it

Anthony Wilson, Esq. SPR18/1864 Page 3 December 12, 2018 describe how the requested records are part of the investigation. Additionally, the City has not demonstrated how disclosure of any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). G. L. c. 4, §7 (26)(f). Conclusion Given that the City did not meet its burden to specifically explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the City is ordered to provide Ms. Labarre with responsive records, 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. The City may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~.~ Supervisor of Records cc: MaryEllen Labarre