Christopher Amrhein v. Braintree, Town of - Police Department (SPR 20191307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records July 10, 2019 SPR19/1307 Lt. Kevin L. Ware Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lt. Ware: I have received the petition of J. Christopher Amrhein, Esq. appealing the response of the Braintree Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Amrhein requested records related to an identified Department incident report. The Department responded on June 12, 2019 by providing responsive records with portions redacted under Exemption (f) of the Public Records Law. G. L. C. 4, § 7(26)(f). 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 portion of the responsive record. Appeal On June li11 the Department provided a responsive report with certain portions redacted. In an email dated July 10, 2019 the Department confirmed that it redacted identifying information of voluntary witnesses under Exemption (f). Attorney Amrhein objects to these 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

Lt. Kevin L. Ware SPR19/1307 Page 2 July 10, 2019 redactions and asserts in his petition that "I am formally appealing the decision to redact the names of the witnesses. The release of the names of the witnesses will not endanger those witnesses. This is not a sensitive matter, it is not a criminal matter, it is a straight forward civil personal injury claim." In his appeal Attorney Amrhein indicates his office represents an individual who sustained personal injuries in a motor vehicle accident. ExempNon (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). 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. In its June 1i 11 response the Department indicates " ... the Braintree Police intend to redact the following report due to the applicability of the following exemption[:] [a ]ny 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 Board, 388 Mass 427,438 (1983)." Based on a review of the file, it appears the Department made two redactions within the report under this exemption. In light of its response, I find the Department has met its burden under Exemption (f) to redact this information that identifies voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248; see also Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 862 (1995) (finding that the encouragement of individuals to come forward by affording confidentiality to their communications "is a principal objective of the investigatory exemption"). Please note that the reason for which a requestor seeks access to or a copy of a record

Lt. Kevin L. Ware SPR19/1307 Page 3 Julyl0,2019 under the Public Records Law does not afford any greater right of access to the requested information than other persons in the general public. Access under the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas, 371 Mass. at 64. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. As such, Attorney Amrhein may wish to seek the records by another means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: J. Christopher Amrhein, Esq.