Diana Susi v. Wakefield, Town of - Police Department (SPR 20201077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2020 SPR20/1077 Sergeant Kevin McCaul Records Supervisor Town of Wakefield Police Department One Union Street Wakefield, MA 01880 Dear Sergeant McCaul: I have received the petition of Diana Susi appealing the response of the Town of Wakefield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Susi requested: a copy of the audio recording of a telephone call made to the Department regarding a certain disturbance on Friday, June 19, 2020. The Department provided Ms. Susi with a copy of the call log without the complainant’s name, and denied the audio recording in its entirety pursuant to Exemption (f) of the Public Records Law. As a result, Ms. Susi petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor It is important for Ms. Susi to understand that her interest in the record does not afford her any greater right of access to the requested record 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. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Susi’s status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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 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

Sgt. Kevin McCaul SPR20/1077 Page 2 July 16, 2020 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 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). The Department’s June 23, 2020 response In its June 23rd response, the Department asserts, “[t]he caller wished to remain anonymous at the time of the call. I have determined that this request….would fall under Exemption (f)…The release of the telephone call would identify the caller…” 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)(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. With respect to its Exemption (f) claim to withhold the 911 recording, in its entirety, the Department indicates, “[it] would not be able to edit the audio recording of the telephone call to avoid indirect identification of the caller.”

Sgt. Kevin McCaul SPR20/1077 Page 3 July 16, 2020 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 Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438. Identifying information of complainants/witnesses/victims Based on the Department’s June 23rd response, I find it is unclear why the responsive 911 call could not be redacted to preserve the complainant’s anonymity. The Department has not established that the recording cannot be redacted in such a way to preserve the complainant’s identification. See Antell, 52 Mass. App. Ct. at 248. While it is unclear whether the Department is in possession of a transcript of the 911 call, it may elect to create one in response to this request as a means of altering the record to protect the complainant’s anonymity if it may not do so by other methods. See G. L. c. 66, § 10(a)(ii). As a result, I find that the Department has not met its burden of explaining with specificity how the call recording, in its entirety, is exempt from disclosure under Exemption (f). 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, § 10(a). Conclusion Accordingly, the Department is ordered to provide Ms. Susi with a response to her 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: Diana Susi