Amy B. Welch v. Sherborn Town of - Police Department (SPR 20191915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 3, 2019 SPR19/1915

Sergeant David T. Bento Sherborn Police Department 17 Washington Street Sherborn, MA 01770

Dear Sergeant Bento:

I have received the petition of Amy Welch, Esq. of Koufiman & Frederick, LLP appealing the response of the Sherborn Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 7, 2019, Attorney Welch requested 11 categories of records, regarding a specific incident that occurred on or about October 9, 2018. On June 19, 2019, the Department provided a response indicating that it does not possess certain records and provided a fee estimate. Upon payment of the fee, the Department provided responsive records in redacted form. The Department claimed Exemption (f) for the redactions. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Attorney Welch petitioned this office and this appeal, SPR19/1915, was opened as a result.

Purpose of request; identity of requestor

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. The Public Records Law does not distinguish between requestors, 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 v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976), Accordingly, Attorney Welch’s purpose in making the request has no bearing on the public status of any existing responsive records,

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 Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”), As

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

Sergeant David T. Bento SPR19/1915 Page 2 October 3, 2019

such, Attorney Welch may wish to consider another means of seeking to obtain any existing responsive records.

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, § 10A(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, § 10(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. .

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Department’s June 1 9" response

In its June 19, 2019 response, the Department indicated that based on an initial review, it possesses certain records responsive to the request. The Department indicated that“. . . certain records... may be withheld or redacted under exemptions to the Public Records Law” and provided a fee estimate to search for, locate, and also segregate/redact all potentially responsive records,

In the Department’s cost estimate, it indicated that based on its initial review, “. . . it will be withholding the identity of witnesses to the event at issue pursuant to Exemption (f) .. .” and explains the policy considerations behind the exemption.

Exemption (f)

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

Sergeant David T, Bento . SPR19/1915 Page 3 October 3, 2019

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.

Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18. Bougas, 371 Mass. at 62. 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 [or her] career.” Id, at 438.

Current appeal

In her appeal petition, Attorney Welch objects to the Department’s redaction of the witness’ identity from the incident report and a body cam video, Attorney Welch claims that the “ materials were compiled in the public view. . . . Specifically, the incident occurred on a public way, in day light, and the witness was in plain sight at the time he spoke to the police. ... This is not a criminal matter nor does there appear to be an ongoing investigation and, therefore, releasing the witness’ identity will not harm the witness nor hinder future police investigatory efforts... .”

Where Exemption (f) permits the non-disclosure of “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials...” I find the Department must provide additional.information regarding whether the records were compiled out of the public view.

Conclusion

Accordingly, the Department is ordered to provide Attorney Welch with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Sergeant David T. Bento SPR19/1915 Page 4 ; October 3, 2019

Regulations within ten 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.

L liecon

Rebecca S. Murray Klecea Muna

Supervisor of Records

ce: Amy Welch, Esq.