Patrick J. Mason v. East Bridgewater, Town of - Police Department (SPR 20191119)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 17, 2019 SPR19/1119 Sergeant William Patterson Town of East Bridgewater Police Department 15 3 Central Street East Bridgewater, MA 02333 Dear Sergeant Patterson: I have received the petition of Patrick Mason of The Mason Group, Inc. appealing the response of the Town of East Bridgewater Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Mason requested a copy of records pertaining to a motorcycle accident on May 25, 2019 and located at 2107 Plymouth Street, specifically: "911 calls and radio transmissions for service; any and all reports by responding department staff; dispatch log of incident; all written statements from witnesses; all video secured from homes/business's surveillance systems in area; and photographs." In its June 4, 2019 response, the Department denied Mr. Mason's request in its entirety under Exemption (f) of the Public Records Law. As a result, Mr. Mason petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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 William Patterson SPR19/1110 Page2 June 17, 2019 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 ofrecords 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, 3 71 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290. Although the Department claims that the requested records pertain to an open, ongoing investigation by the Plymouth County District Attorney's Office, I find Department did not demonstrate how disclosure of any of the records, even in a redacted format, "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). See id. Particularly, the Department did not provide supporting information to demonstrate how disclosure would compromise or negatively impact the ongoing investigation. Neither did the Department 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, § 10( a). The Department must explain why segregable portions of the responsive records cannot be provided. Furthermore, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, 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 ). Here, the Department withheld responsive records under Exemption (f) without identifying the records. Therefore, the Department must identify and what type ofrecord(s) it has that are responsive to Mr. Mason's request that the Department withheld.

Sergeant William Patterson SPR19/1110 Page 3 June 17, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Mason with a 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, ~.~ Supervisor of Records cc: Patrick J. Mason