Jenn Bussell v. Winchester, Town of - Police Department (SPR 20201004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2020 SPR20/1004 Lt. Daniel O’Connell Winchester Police Department 30 Mount Vernon Street Winchester, MA 01890 Dear Lt. O’Connell: I have received the petition of Jenn Bussell appealing the response of the Winchester Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 9, 2020, Ms. Bussell requested: “1. Incident reports affidavits created and submitted by officers of the Department in response to 911 calls for incidents at [a named] Rd [in] Winchester, MA 01890 between 1972 and 2002. 2. Crime scene photos taken on 2 October 2002 and in the days following by officers of the Department at [a named] Rd [in] Winchester, MA, including the interior and exterior of the home and surrounding property (e.g. front and rear walk-ways, driveway, sidewalk, front yard, rear yard, side yards). 3. Transcripts of witness interviews conducted by the Department with PII (personally identifiable information) redacted per MA law pertaining to the 2 October 2002 homicide of [a named individual].” Unsatisfied with the Department’s response, Ms. Bussell appealed and SPR20/1004 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, § 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) (written response must “identify 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

Lt. Daniel O’Connell SPR20/1004 Page 2 July 8, 2020 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). 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 10th response In its June 10th response, the Department denied releasing the report pursuant to Exemption (f) of the Public Records Law G. L. c. 4, § 7 (26)(f). 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. 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 June 10th response, the Department stated that “the DA’s office [is] the lead agency with primary jurisdiction on the case and [the Department] refers to them ... It is my understanding that I cannot release [the] request[ed] documents due to Exemption (f) the investigatory exemption.”

Lt. Daniel O’Connell SPR20/1004 Page 3 July 8, 2020 Burden of specificity in responding and claiming exemptions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. G. L. c. 66, § 10(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Department’s June 10th response did not contain the specificity required in a denial of access to public records. The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Bussell’s request. As a result, I find that the Department did not satisfy its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Ms. Bussell with a response to the request, provided 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: Jenn Bussell