MaryEllen LaBarre v. Springfield, City of - Public Schools (SPR 20190015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 15, 2019 SPR19/0015 Anthony I. Wilson, Esq. City Clerk City of Springfield 3 6 Court Street 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 10, 2018, Ms. LaBarre requested an investigative report of 7/9/2018 related to auto theft and named "18-7792-0F." Purpose of request; identity of requestor 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, Ms. LaBarre's purpose in making the request has no bearing on the public status of any existing responsive records. Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/1864 Determination of the Supervisor of Records (December 12, 2018). In my December 1th determination, I found that the City had not met its burden to withhold responsive records from disclosure pursuant to Exemption (f) of the Public Records Law. Accordingly, I ordered the City to provide Ms. LaBarre with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the December 12th determination, in a response dated December 27, 2018, the City provided additional information regarding its Exemption (f) claim to withhold records from disclosure. G. L. c. 4, § 7(26)(f). Unsatisfied with 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 I. Wilson, Esq. SPR19/0015 Page 2 January 15, 2019 the City's response, Ms. LaBarre petitioned this office and this appeal, SPR19/0015, 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). 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, § 1 O(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 December 2th response In its December 27, 2018 response, the City reiterates its belief that the requested record is exempt from disclosure under Exemption (t), and states that it" ... has reason to believe that [Ms. LaBarre] may know one or more of the witnesses who were interviewed to create the report. Based on this information, the City does not believe that redacting identifying information is sufficient to protect the identity of the witness or witnesses. For that reason, the City is withholding the report in its entirety." Exemption (I) The City claims it withheld the incident report pursuant to Exemption (t) of the Public Records Law. Exemption (t) 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)(±).

Anthony I. Wilson, Esq. SPR19/0015 Page 3 January 15, 2019 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n. 18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. I find the City has met its burden to withhold the incident report, in its entirety, from disclosure pursuant to Exemption (f) of the Public Records Law, given that this report cannot be redacted in a manner that would protect the identities of these witnesses. Conclusion Accordingly, whereas I find the City may permissibly withhold the incident report from disclosure, I will now consider this administrative appeal closed. If Ms. LaBarre is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: MaryEllen LaBarre