Allison Jarmanning v. Boston, City of - Law Department (SPR 20201384)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2020 SPR20/1384 Shawn Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Boston 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 July 10, 2020, Ms. Jarmanning requested the following records: “[1] incident report for December 1, 2017 involving a traffic stop of [an identified individual]. This would have occurred around 11:30 p.m. near the intersection of Blue Hill and Talbot avenues. [2] audio recordings or transcript of the 911 call related to that incident [3] audio recordings or transcript of the dispatch related to that incident[.]” The Department provided a response on August 13, 2020, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Ms. Jarmanning petitioned this office and this appeal, SPR20/1384, 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); 950 C.M.R. 32.06(3); see also Dist. 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

Shawn Williams, Esq. SPR20/1384 Page 2 August 27, 2020 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 August 13th response In its August 13, 2020 response, the Department states “[t]he records . . . are associated with an active and ongoing investigation. As such, your request is denied, as all records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. See G. L. c. 4, § 7 (26) (f). Disclosure of any responsive records would harm the investigative efforts of the Department.” 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 289-90. The Department’s response did not contain the specificity required in a denial of access to public records. In its response, the Department claims the responsive records “. . . are associated with an active and ongoing investigation” However, in her appeal petition, Ms. Jarmanning states the identified individual “was not arrested as part of this stop and has not been

Shawn Williams, Esq. SPR20/1384 Page 3 August 27, 2020 charged. It is my understanding that there is no criminal investigation. He is, however, suing the city of Boston, the police department and various individual officers for their conduct during the stop.” Based on the Department’s response, in conjunction with Ms. Jarmanning’s claim, it is unclear how there is an ongoing investigation as indicated by the City. The City must provide additional information explaining the subject of the investigation and how the requested records are part of the investigation. Further, although the Department asserts that “[d]isclosure of any responsive records would harm the investigative efforts of the Department[,]” the Department did not provide any supporting information to demonstrate how disclosure of the responsive records “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). Additionally, it is unclear from the Department’s response whether any segregable portion of the records can be provided. As a result, I find the Department has not met its burden of explaining with specificity how the 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). 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. Jarmanning 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: Allison Jarmanning