Beth Healy v. Essex County Sheriff's Department - Essex County Regional Emergency Communications Center (SPR 20191967)

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

Rebecca S. Murray Supervisor of Records

October 7, 2019

, SPR19/1967 Lee Ann Delp

Operations Manager

North Shore Regional 911 Center Massachusetts State 911 Department 18 Manning Ave.

Middleton, MA 01949

Dear Ms. Delp: ©

I have received the petition of Beth Healy appealing the response of the Essex County Regional Emergency Communications Center (ECRECC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Healy requested a recording of a 911 call made on May 2, 2019, at approximately 2:08 a.m., from the Middleton House of Correction. Unsatisfied with the response she had received from the ECRECC, Ms. Healy 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, § 1OA(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.

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

Lee Ann Delp SPR19/1967 Page 2. October 7, 2019

Current Appeal — |

ECRECC’s Response

In ECRECC’s September 25, 2019 response, it stated that “[a] 911 caller is a voluntary witness. [Exemption] (f) therefore allows the permanent withholding of the name(s) and identifying details of witnesses. A person’s voice and the corresponding audio recording of a 911 call is identifying.” ECRECC continued:

“(t]he disclosure of the names of voluntary witnesses may deter potential witnesses and citizens from providing information to police in future investigations. Whereas witness information and testimony is essential to efficient and effective law enforcement, the investigative exemption is intended to allow investigative officials.to provide an assurance of confidentiality to private citizens so that they will speak openly to law enforcement.”

Exemption (f) Exemption (£) 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 on-going 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,

Based on ECRECC’s response it is uncertain whether the responsive records pertain to an ongoing investigation. ECRECC must explain the subject of the investigation and describe how the requested records are part of the investigation. Further, ECRECC has not demonstrated how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold

Lee Ann Delp SPR19/1967 Page 3 October 7, 2019

records under Exemption (f). It is the burden of the records custodian to prove with specificity which exemption applies to the records it withholds. G. L. c. 66, §10(b)(iv). Because claims under Exemption (f) are to be evaluated on a case-by-case basis, ECRECC must demonstrate how the exemption applies to the specific record requested by Ms. Healy.

Redaction; Segregability of the Record

Although ECRECC raises concerns regarding witness identification, it is unclear why redaction is not possible to preserve witness anonymity. See Antell, 52 Mass. App. Ct. at 248. It is additionally uncertain how disclosure of any segregable portion of the responsive records would create a grave risk of directly or indirectly identifying a voluntary witness. See Globe Newspaper Co., 388 Mass at 438. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). ECRECC must explain why segregable portions of the responsive record cannot be provided.

Therefore, I find that ECRECC has not met its burden to show how Exemption (f) applies to withhold the responsive record in its entirety. See Reinstein vy. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Conclusion

Accordingly, ECRECC is ordered to provide Ms. Healy with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its 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.

Sincerely,

beeen Manas

Rebecca S. Murray

Supervisor of Records cc: Beth Healy