Kristine LaBelle v. Agawam, Town of - Police Department (SPR 20191208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2019 SPR19/1208 Stephen Buoniconti, Esq. Solicitor Town of Agawam Law Department 36 Main Street Agawam, MA O1 001 Dear Attorney Buoniconti: I have received the petition of Kristine LaBelle appealing the response of the Town of Agawam (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. LaBelle requested a copy of an internal affairs investigation report involving two identified employees of the Town's Police Department. The Town is withholding the internal affairs investigation report in its entirety pursuant to Exemption (f). As a result, Ms. LaBelle 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, § 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 ... "); 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

Stephen Buoniconti, Esq. SPR19/1208 Page 2 June 27, 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 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). 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. In a June 20, 2019 email to a Public Records Division staff attorney, you asserted, " ... please be advised that on the matter of the public records request made by Kristine Labelle, the Town of Agawam invoked Exemption F, the Investigatory Exemption. The Town does not dispute that an internal affairs report is a public record. However, the content of the internal affairs report in question is the subject of a grievance filed by the subject of the internal affairs report. The employee's grievance filed pursuant to the terms of the collective bargaining agreement is pending. The subject matter of the report is part of the grievance. The town's position is that the internal affairs report will be released once the grievance and or arbitration process is concluded." Where the internal affairs investigation has concluded, the report was completed, and there is no on-going investigation, it is unclear how the report may be withheld in its entirety under Exemption (:f). I find the Town has not met its burden of specificity in withholding the report in its entirety. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive record, in their entirety, is exempt from

Stephen Buoniconti, Esq. SPR19/1208 Page 3 June 27, 2019 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). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 1O (a). Conclusion Accordingly, the Town is ordered to review the report, redact where necessary under the exemptions in the Public Records Law, and provide the report to Ms. LaBelle, 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: Kristine LaBelle