Georgi J. Vogel-Rosen v. Fall River, City of - Police Department (SPR 20201098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1098 Lieutenant Jay D. Huard City of Fall River Police Department Office of Professional Standards 685 Pleasant Street Fall River, MA 02721-4305 Dear Lieutenant Huard: I have received the petition of Georgi J. Vogel-Rosen, Esq. of Bianchi Brouillard Sousa & Connell, Counselors-at-Law, appealing the response of the City of Fall River Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Attorney Vogel-Rosen requested all records pertaining to an alleged assault of an identified person on or about March 8, 2019, specifically: 1. Video footage; photographs, and investigative reports regarding the above-mentioned assaults, and 2. Oral or written statements made by the identified person related to the above- mentioned assaults. In a June 23, 2020 response, the Department asserts, “…you requested information relating to the criminal matter of Commonwealth v. Pessoa. The information you have requested is exempt from disclosure by M.G.L. c. 4, § 7(26)(f).” As a result of the Department’s denial of the request in its entirety under Exemption (f), Attorney Vogel-Rosen petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Attorney Vogel-Rosen contends, “[t]he materials are not exempt in their entirety under [Exemption f]. The material requested does not relate to an ongoing investigation. The Grand Jury issued a true bill on June 27, 2019, as evidenced by the enclosed indictment in Commonwealth v. Michael Pessoa, C.A. No. 1973CR00182 in Bristol County Superior Court.” Attorney Vogel-Rosen suggests that the Department provide the non-exempt portions of the records, and that her request number 2 seeks only statements made by her client. Therefore, she asserts disclosure of her client’s statements would not risk revealing the identities of other witnesses. 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. Jay D. Huard SPR20/1098 Page 2 July 17, 2020 Status of the requestor; reason for the request In her request letter and petition to the Supervisor, Attorney Vogel-Rosen explains that her purpose in seeking the records pertains to her advocacy for an identified client. Attorney Vogel-Rosen is advised, the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. 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, Attorney Vogel-Rosen’s purpose in making the request has no bearing on the public status of any existing responsive 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, § 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 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. Exemption (f) In its June 23rd response, the Department merely states the following pertaining to Exemption (f): “[l]aw enforcement records related to ongoing investigation; disclosure would prejudice effective law enforcement; [r]ecords that identify voluntary witnesses; [r]ecords that disclosure investigative techniques. For these reasons, the Department is denying [Attorney Vogel-Rosen’s] public records request.” 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

Lt. Jay D. Huard SPR20/1098 Page 3 July 17, 2020 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 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Prejudice to effective law enforcement In its June 23rd response sent to Attorney Vogel-Rosen and in a July 15, 2020 email to a Senior Attorney in the Public Records Division, the Department asserts that the records must be withheld due to an on-going investigation. In your July 15th email you state, “[p]rior to my response to [Attorney Vogel-Rosen], I checked with the prosecuting attorney, Michael Cahillane.

Lt. Jay D. Huard SPR20/1098 Page 4 July 17, 2020 He informed me that investigation is still considered open. He also informed me that his office received the same public records request and would also be denying it.” However, the Department’s responses do not specifically provide any supporting information concerning how disclosure of redacted records would compromise investigative efforts, as required by Exemption (f). Consequently, the Department has not met its burden to withhold the records, in their entirety, under Exemption (f) of the Public Records Law. Burden of specificity; segregable portions The Department denied Attorney Vogel-Rosen’s request without providing sufficient support to withhold the responsive records under Exemption (f). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(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 Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(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 of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records that it has in its possession that are responsive to Attorney Vogel-Rosen’s request. Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld. Order Accordingly, the Department is ordered to provide Attorney Vogel-Rosen 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.

Lt. Jay D. Huard SPR20/1098 Page 5 July 17, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Georgi J. Vogel-Rosen, Esq., Bianchi Brouillard Sousa & Connell