Adam Bradley v. Lowell, City of - Law Department (SPR 20190456)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 8, 2019 SPR19/0456 John R. Hucksam, Jr., Esq. Assistant City Solicitor Lowell City Hall- Law Department 375 Merrimack Street Lowell, MA 01852 Dear Attorney Hucksam: I have received the petition of Arthur Grenier appealing the response of the City of Lowell's Law 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 December 17, 2018 Mr. Bradley requested four categories of records pertaining to an "Alleged Robbery and Homicide" of a named individual. Prior appeals The responsive records were subject to a prior appeal. See SPR19/0035 Determinations of the Supervisor of Records (Supervisor) (January 22, 2019). In my January 22nd determination, I found that the Department, despite being notified of the opening of the, had not provided a response. The Department was ordered to provide Mr. Bradley with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. Subsequent to my January 22nd determination, the Department provided a response to Mr. Bradley dated January 31, 2019. Mr. Bradley is appealing this January 31st response. The Department's January 31st response In the Department's January 31st response, the Department indicates " [t ]he Lowell Police Department has conducted a search and to date has not located any materials that are responsive to the Request." The Department explains "the 'Alleged Robbery and Homicide of [the named individual]' occurred in Billerica and not Lowell and we have been informed that the involvement of the Lowell Police Department was largely limited to assisting in the arrest of suspects in [the named individual's] robbery and homicide." However, the Department states "to the extent that any such materials are in possession, custody or control of the Lowell Police 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

John R. Hucksam, Jr., Esq. SPR19/0456 Page 2 March 8, 2019 Department, they are exempt from production pursuant to, without limitation, the Investigatory Exemption." 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. 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. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely

John R. Hucksam, Jr., Esq. SPR19/0456 Page 3 March 8, 2019 candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. In its January 31st response the Department claims they have "been informed by the Middlesex County District Attorney's Office that the investigation into [the named individual's] robbery and homicide is open and ongoing" and they also claim the investigation could "be jeopardized by the release of the materials." The Department explains "if the requested materials were released, confidential investigative techniques, procedures, or sources of information could be disclosed and the identity of suspects and witnesses could become public knowledge ... [t]herefore disclosure of the requested materials could prejudice effective law enforcement." Further, the Department indicates "the requested records are 'witness statements' and statements by witnesses are often made on condition of anonymity, witness statements made to police officers conducting an investigation are exempt from disclosure." The Department claims "the Request appears intentionally crafted to obtain materials that would detract from effective law enforcement by identifying suspects and witnesses related to open and ongoing investigation." Burden of specificity; segregable portions 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, § lO(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. In Mr. Bradley's appeal he states the Department "does not specify what is exempt and rather vague." After review of the Department's January 31st response and Mr. Bradley's appeal, it is unclear if the Department has in their possession responsive records. Further, if they are in possession of responsive records, the Department did not identify any records, categories of records or portions ofrecords that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, 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). Therefore, the Department must identify the type ofrecord(s) it has in its possession (if any) that it withheld. Further, the Department's initial response did not contain the specificity required in a denial of access to public records. The Department did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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).

John R. Hucksam, Jr., Esq. SPR19/0456 Page4 March 8, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Bradley with a further response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: James Bradley