Maggie Mulvihill v. Boston, City of - Police Department (SPR 20190692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 16, 2019 SPR19/692 Shawn A. Williams, Esq. Director of Public Records City of Boston Office of the Records Access Officer One City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Maggie Mulvihill, Associate Professor of the Practice in Computational Journalism at Boston University, appealing the response of the City of Boston - Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Professor Mulvihill requested records: 1. For squads 1, 3 and 5, the batting orders for Area E-18 for all shifts from January 1, 2018 to the present (February 12, 2019 - date of the request); and 2. For Area D-4, all batting orders for all squads for all shifts from January 1, 2018 to the present (February 12, 2019 - date of the request). Prior appeal The responsive records were the subject of a prior appeal based on the Department's non response to the February 12, 2019 request. See SPR19/491 Determination of the Supervisor of Records (Supervisor) (March 18, 2019). I closed SPR19/491 by ordering the Department to review the requests made by Professor Mulvihill and provide the requested records within ten business days. After receiving records redacted pursuant to Exemption (f) of the Public Records Law, Professor Mulvihill petitioned the Supervisor, and the current appeal 'vvas opened. In an April 2, 2019 email to this office, Professor Mulvihill states: "I would like to amend my appeal to also include a determination by your office as to [Department's] failure to include for Area E-18, last bat (11 :45-7:30) for 12/6. I was only 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. SPR19/692 Page 2 April 16, 2019 provided a day bat for 12/6 and two identical bats for 12/6 (first half bats) (4:00-11/45). That information is not responsive to the request." The Department must provide the December 6th shift records that Professor Mulvihill did not receive, or explain why those records cannot be provided. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). 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, § 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 ... "); 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). 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 deemedc4,t..,_o4,b-e-------- 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, 3 78 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of

Shawn A. Williams, Esq. SPR19/692 Page 3 April 16, 2019 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Department provided eight pages of redacted records responsive to Professor Mulvihill' s request. Your March 26, 2019 response that accompanied the redacted records indicates: "[t]he records provided are redacted to omit the locations of deployed officers, as well as the number of specific types of officers deployed. This information is exempt from disclosure under Exemption (f) of the public records law. Disclosure of this information would provide for potential dispatching patterns and would be a harm to public safety." I find the Department has not met its burden of specificity in withholding portions of the responsive records under Exemption (f). The Department did not provide supporting information concerning how disclosure would jeopardize, or be detrimental to, any on-going investigation. Neither has the Department demonstrated that disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Burden of specificity 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); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify the portions of the responsive records that the Department withheld under Exemption (f). To deny access to a record or portion of 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, § 1 O(b )(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld portions of the records without identifying what type of information the Department redacted from each of the records. Therefore, the Department must identify what type of information contained in the records that the Department withheld under Exemption (f). It is my understanding that a Public Records Division staff attorney discussed this appeal with you on April 11th, and that you intend to provide a supplemental response. Conclusion Accordingly, the Department is ordered to provide Professor Mulvihill with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Shawn A. Williams, Esq. SPR19/692 Page4 April 16, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Maggie Mulvill, Associate Professor