Craig MacIsaac v. Brookline, Town of - Police Department (SPR 20192261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 21, 2019 SPR19/2261 Deputy Superintendent Myles Murphy Town of Brookline Police Department Public Safety Building 350 Washington Street Brookline, MA 02445 Dear Deputy Superintendent Murphy: I have received the petition of Craig Maclsaac, an Associate Claims Adjuster for Amica Mutual Insurance Company (Amica), appealing the response of the Town of Brookline 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, Mr. Maclsaac requested a copy of a motor vehicle accident report on behalf of an identified insured paiiy. The Department provided the motor vehicle accident report in redacted format under Exemptions (a), (c) and (f). As a result of not receiving the names and contact information of the witnesses to the accident, as well as, the witness statements, Mr. Maclsaac petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Maclsaac states, "[f]or [Amica] to fully investigate this matter we would need to contact the witnesses to get their statements about what they saw happen in the accident; however, their contact information has been blacked out. Since the witness statements are not reflected on the police report, we are requesting that [the witnesses contact information] be released." Status of the requestor; reason for the request It is important for Mr. Maclsaac to understand that his interest in the responsive record does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Cl1ief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Maclsaac's status as an Associate Claims 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

Deputy Superintendent Murphy SPR19/2261 Page 2 November 21, 2019 Adjuster at Amica will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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); 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.'') 950 C.M.R. 32.08(1)(a). As such, Mr. Maclsaac may wish to consider another means of seeking to obtain the contact information of the witnesses to the motor vehicle accident. 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) (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). Exemption(/) Whereas, Mr. Maclsaac's purpose in filing an appeal with this office pertains to the redaction of the witnesses contact information and witness statements, this determination will be limited to the withholding of this information. The Department withheld the contact information and narrative statements of the individuals who reported or disclosed information to the Department pertaining the motor vehicle accident report under 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 material 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)(±).

Deputy Superintendent Murphy SPR19/2261 ' Page 3 November 21, 2019 A custodian of records generally must demonstrate a prejudice to investigative effcnis 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, 3 78 Mass. at 289-90. The Department withheld the addresses, telephone numbers and the witness statements in their entirety under Exemption (f). As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. 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 disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, I find that the Depa1iment may permissibly withhold identifying information, such as the addresses, telephone numbers, dates of birth, and any other identifying details of the witnesses under Exemption (f). See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). However, it is unclear why the Department could not provide the witness statements in a redacted format to protect any identifying information of the witness under Exemption (f). I find that the Depmiment should review the witness statements and redact where necessary to protect any information that may directly or indirectly identify the witnesses. Conclusion Accordingly, I find that the Department has met its burden in withholding the contact information of the witnesses under Exemption (f); however, the Department did not meet its burden in withholding the witness statements in their entirety. The Department is ordered to review the witness statements, redact where necessary and provide Mr. Macisaac with the responsive witness statements, 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

Deputy Superintendent Murphy SPR19/2261 Page 4 November 21, 2019 pre@sec.state.ma. us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Craig Maclsaac