Georgi J. Vogel-Rosen v. Fall River, City of - Police Department (SPR 20201253)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1253 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. Previous Appeal This request was the subject of a previous appeal. See SPR20/1098 Determination of the Supervisor of Records (July 17, 2020). In my July 17th determination, I found the Department had not met its burden to withhold the records, in their entirety, under Exemption (f). The Department was 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. On July 21, 2020, Attorney Mary Lee of the Bristol District Attorney’s Office (DAO) answered on behalf the Department. Unsatisfied with the Department’s response, Attorney Vogel-Rosen petitioned this office, and SPR20/1253, 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 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 SPR20/1253 Page 2 August 10, 2020 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. The DAO’s July 21st response on behalf of the Department In its July 21st response, the DAO indicates “[b]ecause SPR 20-1098 involves records related to a pending criminal proceeding, the Bristol District Attorney’s Office is answering on behalf of the Fall River Police Department. The request was for records related to a pending criminal prosecution, specifically video, photographs and investigative reports and oral or written statements by an identified person. Please be advised that the criminal prosecution referenced is still pending. The records that were requested are therefore not publicly available. G.L. c. 4, § 7, cl. 26(f); Mass. R. Prof. Cond. 3.8(f)(1)-(2); Commonwealth v. Wood, 469 Mass. 266, 291-292 (2014). They are exempt from dissemination because they are associated with a named individual’s criminal prosecution and are protected from public disclosure under the CORI statute. Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 267-274 (2020); G.L. c. 6, §§ 167, et seq. The pending criminal proceeding that was referenced is subject to an impoundment order, an additional basis to withhold the records from dissemination as public records. Commonwealth v. Chism, 476 Mass. 171, 185, n.9 (2017).” The DAO also states “…any information that, if disclosed, would constitute an unwarranted invasion of personal privacy is also exempted from disclosure. G.L. c. 214, § 1B; G.L. c. 4, § 7, cl. 26(c)…[s]tatements of identifiable individuals who served as witnesses or who reported information to investigators are exempt from disclosure under the investigatory exception to the Public Records Law. G.L. c. 4, § 7, cl. 26(f) (protection of confidentiality for witnesses to preserve future investigatory techniques). See also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (explanation of ‘identifying details’ and ‘grave risk of indirect identification’ of witnesses). Publication of such information would dissuade future witnesses from cooperating with the police in future investigations, particularly given the circumstances of the pending prosecution here and the substantial pretrial publicity.”

Lt. Jay D. Huard SPR20/1253 Page 3 August 10, 2020 Pending Litigation Subsequent to the opening of this appeal, Attorney Lee emailed this office on July 30, 2020, indicating their July 21st response “explains the position of my office for both appeals, given that the requested records relate to an ongoing prosecution with an impoundment order.” 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Whereas the public records in question are the subjects of disputes in active litigation, I decline to opine on this matter. It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Georgi J. Vogel-Rosen, Esq., Bianchi Brouillard Sousa & Connell Mary Lee, Esq., Bristol District Attorney’s Office