Corey Spaulding v. Concord, Town of - Police Department (SPR 20191458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2019 SPR19/1458 Joseph F. O'Connor Chief of Police Concord Police Department 219 Walden Street, P.O. Box 519 Concord, MA 01742 Dear Chief O'Connor: I have received the petition of Corey Spaulding appealing the response of the Concord Police Department (Department) to a request for public records. G. L. c. 66, § IOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRI 9/13 87 Determination of the Supervisor of Records (July 19, 2019). In my July 19th determination I ordered the Department to provide Ms. Spaulding with a response in accordance with the Public Records Law and its Access Regulations (Regulations). The Depaiiment responded on July 22, 2019 by providing a redacted copy of a responsive record. Ms. Spaulding appealed and SPR19/1458 was opened as a result. Tile 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); 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Joseph F. O'Connor SPR19/1458 Page 2 August 6, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In a July 10, 2019 response the Depaiiment identified one responsive record within its possession, but asserted "[t]he record requested contains information related to a voluntary witness/ informant." The Department cited Exemption (f) of the Public Records Law to withhold the requested record in its entirety. In my July 19th determination I found that upon completion of an in camera review of the record, although voluntary witness identification information could be redacted, it was unclear why the entire document needed to be withheld. Specifically, I found that it appeared portions may be disclosed without creating a grave risk of directly or indirectly identifying voluntary witness( es). In its July 22nd response the Depaiiment provided the record with pmiions redacted under Exemption (f). Ms. Spaulding objects to these redactions. 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 ale1i 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. The Depaiiment's July 22nd response ii;idicates "[t]he record requested contains information related to a voluntary witness/informant. Any information contained in a witness

Joseph F. O'Connor SPR19/1458 Page 3 August 6, 2019 statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness or informant is subject to withholding. '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.' Globe Newspaper Co. v. Boston Retirement Bd. 388 Mass. 427,438 (1983)." The Department also addressed several questions Ms. Spaulding raised in a July 12, 2019 correspondence. In paiiicular, you assert "[t]he date of the report is redacted from the repo1i under Exemption [f J as applied above; wherein disclosing the date of the rep01i would create a grave risk of directly or indirectly identifying the voluntary witness/informant." You further note "[t]he rep01iing party's name is redacted from the report under Exemption [fJ as applied above; wherein disclosing the reporting party's name would directly identify the voluntary witness/informant." The Depaiiment also explains "[t]he status of the investigation is currently ongoing." In light of the Depa1iment's production of a redacted record, along with its July 22°d response that explains how such redactions were made in order to avoid identification of voluntary witness(es) as allowed by Exemption (f), I find the Department has met its burden in responding to this request. See Antell, 52 Mass. App. Ct. at 248. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas, 371 Mass. at 64. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachtisetts Supreme Judicial Court has held that while a paiiy' s access to records may be limited by the Public Records Law, this may not preclude obtaining the records tlu·ough discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Ms. Spaulding may wish to consider another means of seeking to obtain responsive records. Sincerely, ~ I T ~ Supervisor of Records cc: Corey Spaulding