Adam Bradley v. Billerica, Town of - Police Department (SPR 20190693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 17, 2019 SPR19/693 Sergeant John Zarro Town of Billerica-Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Zarro: I have received the petition of Adam Bradley appealing the response of the Billerica Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on March 14, 2019, Mr. Bradley requested the following records regarding a 2012 homicide. "1. A copy of [a n identified individual's] interviews that were audio and video recorded; 2. A copy of [an identified individual's] audio and video recorded interviews; 3. A copy of any and all reports, memoranda, and notes regarding the descriptions of intruders as being 'Dark skin' 'Hispanic' 'Black' 'tall' males given to Billerica Police Officers by [ an identified individual]." The Department responded on March 21, 2019, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). Unsatisfied with the Department's response, Mr. Bradley petitioned this office and this appeal, SPR19/693, 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 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

Sergeant John Zarro SPR19/693 Page2 April 17, 2019 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, § lO(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 March 2J5' response In its March 21, 2019 response, the Department indicates that Mr. Bradley's" ... request for audio and videos of interviews with witnesses along with any and all reports, memos, and notes regarding the descriptions of intruders provided to [the Department] by witnesses is denied due to an open investigation (Exemption (F)." The Department asserts that "[t]his case is still open and the investigatory exemption applies and provides us the custodian a basis of withholding 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. This exemption protects materials that could compromise the investigative efforts of this agency." Exemption (f) 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.

Sergeant John Zarro SPR19/693 Page 3 April 17, 2019 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. The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. The Department is reminded that 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, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Department must identify any records, categories of records or portions of records it is withholding under Exemption (f). Further, the Department's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, although the Department indicates that "[t]his exemption protects materials that could compromise the investigative efforts of this agency[,]" the Department does not provide supporting information concerning how disclosure would compromise its investigative efforts or "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). It is additionally uncertain why the records are being withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (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). Consequently, I find the Department has not met its burden to establish how the responsive records may be withheld under Exemption (f) 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 Accordingly, the Department is ordered to provide Mr. Bradley with a response to the request, 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.

Sergeant John Zarro SPR19/693 Page 4 April 17, 2019 Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Adam Bradley