Jenn Bussell v. Winchester, Town of - Police Department (SPR 20201343)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 25, 2020 SPR20/1343 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 Town of Winchester Police Department (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].” Previous Appeal This request was the subject of a previous appeal. See SPR20/1004 Determination of the Supervisor of Records (July 8, 2020). In my July 8th determination, I ordered the Department to identify what records it has in its possession, custody or control that are responsive to Ms. Bussell’s request. Unsatisfied with the Department’s response, Ms. Bussell appealed and SPR20/1343 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 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 SPR20/1343 Page 2 August 25, 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 August 5th response In its August 5, 2020 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. 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 August 5th response, the Department stated that “the MDAO ongoing investigation in this criminal case directly affects the applicability of the investigatory exemption (f) to records requested…” The Department identified that, “it [has] in its possession police incident reports related to the requested incident [and] [has] handwritten notes taken by officers in the course of interviewing witnesses. [but] [does not] have any transcript of witness interviews.”

Lt. Daniel O’Connell SPR20/1343 Page 3 August 25, 2020 The Department further asserted that, “[it] does not have in its possession any crime scene photos of the October 2, 2002 incident.” Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). The Department does not describe how the disclosure of the information would reveal confidential investigative techniques that are unique to the Department nor how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records or segregable portions thereof “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). It is additionally uncertain why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. 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). As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. 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., 388 Mass. at 438. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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