Corey Spaulding v. Concord, Town of - Police Department (SPR 20191387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records July 19, 2019 SPR19/1387 Sergeant Jeffrey Young Detective Unit Supervisor Concord Police Department 219 Walden Street Concord Street Dear Sergeant Young: I have received the petition of Corey Spaulding appealing the response of the Concord Police Depaiiment (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Spaulding requested "any and all records, [documents], information regarding a concern of safety with my name Corey Spaulding associated with it." Unsatisfied with the Department's response in which they note their intention to withhold records citing Exemption (f) of the Public Records Law, Ms. Spaulding petitioned this office and this appeal was opened as a result. 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. The Department's response A representative from the Department responded to Ms. Spaulding's request with a response sent on July 10, 2019. In their response the Department identified one responsive record 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

Sgt. Young SPRl 9/1387 Page 2 July 19, 2019 within its possession, but asserted "[t]he record requested contains information related to a voluntary witness/ informant." The Depaiiment cites Exemption (f) of the Public Records Law to withhold the requested record in its entirety. 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 effmis 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. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. See G. L. c. 66, § 1O (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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In camera review Upon completion of an in camera review of the records conducted by this office, I find that although voluntary witness identification information can be redacted, it is unclear why the entire document needs to be withheld. Specifically, upon review of the record it appears portions may be disclosed without creating a grave risk of directly or indirectly identifying voluntary witness( es).

Sgt. Young SPR19/1387 Page 3 July 19, 2019 In a conversation with a staff member from the Public Records Division, the Department noted that they would be willing to provide a supplemental response. Accordingly, the Department is ordered to provide Ms. Spaulding with a written response. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Spaulding may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~.~ Supervisor of Records cc: Corey Spaulding