Gal Tziperman Lotan v. Boston Police Department (SPR 20200455)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 16, 2020 SPR20/0455 Martha J. DeMaio Records Access Officer City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Gal Tziperman Lotan, of the Boston Globe, appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Lotan requested an electronic copy of the following records: 1. The incident report for the police-related shooting that occurred on Friday, February 7, 2020 at approximately 9:20 am near the emergency room entrance at Brigham Women's Hospital on Francis Street. In case it is helpful in identifying the relevant shooting, I understand that a valet, who appears to have been a bystander, was shot and hospitalized for injuries sustained during this shooting; 2. All recordings for 911 calls associated with, or otherwise regarding, the [Department] related shooting that occurred on Friday, February 7, 2020 at approximately 9:20 a.m., near the emergency room entrance at Brigham Women's Hospital (the same shooting mentioned in my first request); 3. The incident report for the police related shooting of [a n identified person], age 41, that occurred on Friday, February 7, 2020 near 1195 Boylston Street in Brookline; 4. All recordings of 911 calls associated with, or otherwise regarding, the police related shooting of [an identified person], age 41, that occurred on Friday, February 7, 2020 near 1195 Boylston Street in Brookline. In a February 14, 2020 response, Sergeant Detective John Boyle of the Department provided the incident report (Request No. 1); however, the Department withheld the other requested records in their entirety under Exemption (f) of the Public Records Law due to an active and on-going investigation. Requests 2-4. As a result of the denial of access to the records responsive to Requests 2-4, the requestor petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

J. Martha DeMaio SPR20/0455 Page2 March 16, 2020 Gal Tziperman Lotan's March 3, 2020 petition to the Supervisor noted that the Department's response did not identify the responsive records the Department possesses but is withholding; the Department provided a supplemental report which may not be the actual "incident rep mi;" and did not identify whether it is in possession of any 911 call 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, § 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, § 1O (b )(iv) (written response must "identify any records, categories of records or pmiions 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 (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 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, 3 71 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 3 78 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 id. at 289-290.

Martha J. DeMaio · SPR20/0455 Page 3 March 16, 2020 It is unclear why the records cannot be provided in a redacted manner. I find the Department has not met its burden of specificity in withhold the records in their entirety under Exemption (f) of the Public Records Law. Burden of specificity; duty to segregate The Department denied Gal Tziperman Lotan's Requests 2-4 in their entirety under Exemption (f) of the Public Records Law without supporting the withholding of the responsive records in their entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Depaiiment must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records under Exemption (f) without identifying each of the records. Therefore, the Department must identify how many and what type ofrecord(s) it has in its possession that the Department withheld. Order Accordingly, the Department is ordered to provide Gal Tziperman Lotan with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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, ~~ Rebecca S. Murray Supervisor of Records cc: Gal Tziperman Lotan Shawn A. Williams, Esq.