Greg Saulmon v. Chicopee, City of - Police Department (SPR 20181976)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPRlS/1976 Officer Louis F. Vezina, Jr. Chicopee Police Department Bureau of Services Records Access Officer 110 Church Street Chicopee, MA O1 013 Dear Officer Vezina: I have received the petition of Greg Saulmon of The Republican appealing the response of the Chicopee Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Saulmon requested several categories of records, including emails, text messages, and memos, related to an identified incident and certain individuals. Previous appeal This request was the subject of a previous appeal. See SPRl 8/1243 Determination of the Supervisor of Records (August 30, 2018). In my August 30th determination I found that given that the Department did not meet its burden to explain how an exemption applies to the records, the Department was ordered to review the records, redact where necessary, and provide Mr. Saulmon with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations. The Department responded on September 11, 2018 by denying access to responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(:t). Mr. Saulmon appealed and SPR18/1976 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 Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Officer Louis F. Vezina, Jr. SPR18/1976 Page2 December 21, 2018 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, § 1O (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). Current appeal 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. In its September 11th response the Department references the statutory language of Exemption (f). You also assert "[t]he report in question, is the only item in the possession of the Chicopee Police Department. All other information 'if any' has been turned over to the District Attorney's Office in Springfield, MA as part of their investigation on the Stewart Weldon case. As you are aware Weldon was indicted on 52 counts to include three counts of murder. With the direction of the District Attorney's Office and Assistance District Attorney Max Bennett, I must refer you to the DA's office for any fu[r]ther information." In his appeal petition Mr. Saulmon indicates" ... given that the indictments have been in hand since August, and the fact that the district attorney's office did not renew impoundment orders for other case materials that it secured during the grand jury process, it is unclear whether this directive still stands -- or whether it would truly preclude the Department from releasing any responsive records in its possession." Mr. Saulmon asks this office to" ... order the Department to issue a response that meets its burden to identify any responsive records and explain how any

Officer Louis F. Vezina, Jr. SPRlS/1976 Page 3 December 21, 2018 exemptions apply-and further, that you order the department to release the records The Republican requested on July 31." I find that the Department has not established how Exemption (f) applies to withhold the responsive records in their entirety; in particular, it is unclear what the status of the investigation is, nor is it clear what information is within the report and how disclosing such information within the report "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). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); G. L. c. 66, § lO(b )(iv) (a municipality 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). Conclusion Accordingly, the Department is ordered to provide Mr. Saulmon with a response prepared 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Greg Saulmon Christine Pikula, Esq.