Patrick J. Mason v. Tewksbury, Town of - Police Department (SPR 20191288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2019 SPR19/1288 John S. Voto Deputy Chief of Police Tewksbury Police Department 918 Main Street Tewksbury, MA 01876 Dear Deputy Chief Voto: I have received a petition from Patrick Mason appealing the response of the Town of Tewksbury Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Originally, Mr. Mason requested records concerning a June 15, 2019 motorcycle fatality incident. The Department provided Mr. Mason with a response 011 June 111 26, 2019. Mr. Mason appealed the Department's June 26 response. 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 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 pmiion of the responsive record. G. L. c. 66, § 1O (b )(iv). 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. 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

Deputy Chief Voto SPR19/1288 Page 2 July 10, 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, 37 1 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. The Department's June 26th response stated "[a]fter researching the matter [the Department] was notified by District Attorney's Office that the investigation is still open for this

Deputy Chief Voto SPR19/1288 Page 3 July 10, 2019 case. As you are aware the accident reconstruction is not completed yet, and other impo1iant information needs to be process[ed] before this incident is completed and final disposition is made at the District Attorney's Office." The Department goes on to explain that "[i]f any information was to be released before a disposition, [the Depatiment] believes this could be very prejudicial to any person involved in the case, or anybody assigned to make an un-bias decision on the occurrence of that night." The Department expressed their position that "[n]o ultimate decision can be made in this case until accident reconstruction is completed, and the District Attorney is afforded the opportunity to review all of the facts surrounding this unf01iunate incident, therefore [the Department is] denying your request for these records under exemption F of the public records law." I find the Department has demonstrated the active and ongoing nature of this investigation. In light of the active and ongoing nature of the investigation, coupled with the Department's June 26th response explaining the negative impact even partial disclosure would have on the investigation and any potential prosecution, I find the Department has met its burden to withhold responsive records under Exemption (f). It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Based on the Department's June 26th response, I find the Department has met its burden in responding to Mr. Mason's request. See G. L. c. 66, § lO(a)(ii), (b)(ii)(iii). I will now consider this administrative appeal closed. Sincerely, ~M~ Supervisor of Records cc: Patrick Mason