Arthur G. Grenier v. Cambridge, City of - Law Department (SPR 20191321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2019 SPR19/1321 Seah Levy Records Access Officer City of Cambridge Law Department 795 Massachusetts A venue Cambridge, MA 02139 Dear Seah Levy: I have received the petition of Arthur G. Grenier appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Grenier requested surveillance images and video of an identified person. In a July 1, 2019 response, the City denied Mr. Grenier's request in its entirety under Exemption (f) of the Public Records Law. As a result, Mr. Grenier 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, § IO(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

Seah Levy SPR19/1321 Page 2 July 16, 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 eff01is 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 teclmiques 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 h1terest." See id. at 289-290. The City claims that there is an on-going investigation, however, has not demonstrated that a prejudice to investigative efforts exists. Neither has the City demonstrated that release of the surveillance recordings could alert suspects to the activities of the City's investigative officials, if disclosed to the public. I find that the City has not met its burden of specificity in claiming Exemption (f) to withhold the recording in its entirety. Burden of specificity; duty to segregate The City denied Mr. Grenier's request without detailing how Exemption (f) in the Public Records Law suppo1is the City's withholding of the responsive record(s). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how the responsive 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). The City must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 1O (a). In addition, the City did not identify whether it possesses the requested records it seeks 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 of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the

Seah Levy SPR19/1321 Page 3 July 16, 2019 City withheld responsive records without identifying the records it possesses. Therefore, the City must identify how many and what type ofrecord(s) it has in its possession that are responsive to Mr. Grenier's request and that the City withheld. Conclusion Accordingly, the City is ordered to provide Mr. Grenier 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, ~~ Rebecca S. Murray Supervisor of Records cc: Arthur G. Grenier