Julie A. Halaby v. Boston, City of - Police Department (SPR 20182094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2019 SPRlS/2094 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 Julie Halaby, Esq. of Halaby Law Group, P.C. on behalf of Detective Alvin Holder appealing the response of the Boston 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, on September 24, 2018, Attorney Halaby requested "[t]he complete Internal Affairs Division (IAD) file for IAD case #240-05, including but not limited to a complete and unredacted copy of the February 6, 2006 report from Sgt. William Chinetti to Deputy Supt. Marie Donahue in that case (Investigative report)." The Department provided a response on September 27, 2018, which included portions of the responsive records in redacted form. The Department denied access to the Investigative report because Attorney Halaby has a unique right of access to the records and pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Attorney Halaby petitioned this office and this appeal, SPR18/2094, was opened as a result. This appeal pertains to the Investigative report only. Purpose of request; 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 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 Halaby'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, 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. SPR18/2094 Page 2 January 9, 2019 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 Halaby 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, § 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's September 21h response In its September 27, 2018 response, the Department, referencing a Public Records Regulation, 950 C.M.R. 32.06(1)(g), states that "[a]s counsel for Detective Holder, you have a 'unique right of access' to these records outside of the Public Records Law. Accordingly, the Department will not consider this as a public records request but will provide the records [Attorney Halaby is] seeking in response to an information request." The Department, however, encloses a copy of the IAD case file. The Department asserts that should Attorney Halaby's request be treated as a public records request, it would withhold the Investigative reports from disclosure under Exemption (f) because, they" ... are confidential and investigatory." The Department states "[t]he exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. Accordingly, a records custodian may withhold confidential investigative techniques indefinitely since their disclosure would prejudice future law enforcement efforts." As such, the Department asserts that it" ... withheld these reports as they contain information used to determine the charges that were levied against Officer Lee and Detective Holder. These reports contain the opinions and recommendations of the investigations and disclosing this information

Shawn A. Williams, Esq. SPR18/2094 Page 3 January 9, 2019 would expose the techniques used in firearm investigations and Internal Affairs Investigations." 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. The Department asserts that the Investigative reports" ... contain information used to determine the charges that were levied against Officer Lee and Detective Holder, ... the opinions and recommendations of the investigations, and [that disclosure] ... would expose the techniques used in firearm investigations and Internal Affairs Investigations." However, it is unclear how disclosure of the Investigative reports would reveal confidential investigative techniques that are unique to the Department or how disclosure "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). It is additionally uncertain why records cannot be redacted to prevent the disclosure of the Department's techniques used in its firearm investigations and Internal Affairs Investigations. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Unique right of access; application of administrative appeals process In its response, the Department asserts that because Attorney Halaby is counsel to Detective Holder, she has a unique right of access to the records outside of the Public Records Law. However, it is unclear how Attorney Halaby has a unique right of access thereby barring

Shawn A. Williams, Esq. SPR18/2094 Page 4 January 9, 2019 the application of the administrative appeal process as required under the Public Records Law. In her petition for appeal, Attorney Halaby explains that "[t]he Department has withheld the report from Detective Holder since 2006 and withheld it from his former attorney in multiple proceedings where accusations were made against him. The Department has denied me access to the report as his current attorney. It has failed to produce it to me in response to my multiple requests including my request for his personnel file, which violates the Personnel Record Law, M.G.L. C. 149, s. 52 ...." Accordingly, based on the information provided by Attorney Halaby in her petition, it is unclear how she has a unique right of access to the requested records. The Department must identify the means affording Attorney Halaby a "unique right of access" and explain its applicability or apply the Public Records Law to the request and explain with specificity how Exemption (f) applies to withhold the responsive records in their entirety. 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 Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is ordered to review the Investigative reports, redact where necessary, and provide Attorney Halaby 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 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: Julie Halaby, Esq.