Ryan Kath v. Quincy City Solicitor (SPR 20191210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 1, 2019 SPR19/1210 James S. Timmins, Esq. City Solicitor City of Quincy 1305 Hancock Street Quincy, MA 02169 Dear Attorney Timmins: I have received the petition of Ryan Kath of NBC 10 Boston appealing the response of the City of Quincy (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Kath requested"[a ] ny subpoena for records received by the City of Quincy from any state or federal agency. Please include any subpoenas received from April 2019 tluu present." The City responded on June 10, 2019 by providing one responsive record and denying access to another record. Tfte 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, § 1O A( 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); 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). 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 pmtion of the responsive record. Appeal In its June 101 h response the City indicates it" ... has received two documents responsive to your request of May 28, 2019. I am providing one of those (the second one received in this office) attached hereto. I am withholding the first request we received." You assert that "[t]he One Ashbmton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

James S. Timmins, Esq. SPR19/1210 Page2 July 1, 2019 individual who prepared and caused to be served the first request specifically asked that we keep it confidential, and indicated to me that the investigatory exemption to the public records law was the basis for, and supp01tive of, his request. I am going to honor his wishes; I therefore advise that I will be withholding that document." Based on this response, it appears the City is citing to Exemption (f) to withhold the record at issue. Mr. Kath objects to the City's withholding of the record. 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 effo1ts 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. Despite the City's response, it is unclear whether the record relates to an ongoing investigation, nor is it clear whether the record contains confidential investigative techniques which if disclosed would be prejudicial to future law enforcement activities. The City also has not established whether the record contains information that would identify voluntary witnesses. As a result, the City has not met its burden to show how the record at issue may be withheld in its entirety under Exemption (f). Id.; G. L. c. 66, § lO(a) (any non-exempt, segregable p01tion of a public record is subject to mandatory disclosure). Co11cl11sio11 Accordingly, the City is ordered to provide Mr. Kath with a response to the request, provided 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.

James S. Timmins, Esq. SPR19/1210 Page 3 July 1, 2019 Sincerely, ~'~ Supervisor of Records cc: Ryan Kath