Arthur G. Grenier v. Beverly Police Department (SPR 20200156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2020 SPR20/0156 Chief John G. LeLacheur Beverly Police Department 191 Cabot Street Beverly, MA 01915 Dear Chief LeLacheur: I have received the petition of Arthur G. Grenier appealing the response of the Beverly Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 2, 2019, Mr. Grenier requested, "the policy, procedure, general order or written directives that pertain to the use of confidential informants." Tlte 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); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Tlte Department's January 13"' Response The Department provided a response to Mr. Grenier on January 13, 2020 denying the records in their entirety citing Exemption (f) of the Public Records Law. Unsatisfied with the Department's response, Mr. Grenier appealed and SPR20/0156 was opened as a result. Exemption (I) Exemption (f) permits the withholding of: 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

Chief John G. LeLacheur SPR20/0156 Page2 February 7, 2020 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 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 289-290. · In its January 13th response, the Department stated that "this record comprise[s] confidential investigative techniques that should be withheld indefinitely since their disclosure would prejudice future law enforcement efforts." In support of its position, the Department cited the cases, Bougas, 371 Mass. at 62 and Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). While the Department claims that disclosing reports that contain information about confidential investigatory techniques employed by the Department would prejudice effective law enforcement, the Department does not describe how the disclosure of the information would reveal confidential investigative techniques that are unique to the Department nor how the requested records are part of an ongoing investigation. Further, the Department did not demonstrate how disclosure of the responsive records or segregable portions thereof "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). It is additionally uncertain why the Depaiiment cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Conclusion Accordingly, the Department is ordered to review the request and provide a response to Mr. Grenier made in accordance with the Public Records Law, its Access Regulations and this order within 10 business days. A copy of any such response must be provided to this office. It is

Chief John G. LeLacheur SPR20/0156 Page 3 February 7, 2020 preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur G. Grenier