Mary David v. Longmeadow, Town of - Police Department (SPR 20201946)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2020 SPR20/1946 Robert Stocks Chief of Police Longmeadow Police Department 34 Williams Street Longmeadow, MA 01106 Dear Chief Stocks: I have received the petition of Mary David appealing the response of the Longmeadow 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 September 2, 2020, Ms. David requested copies of the following records regarding an incident, #18LON-820-0F, at an identified address: • All reports related to the incident, including police reports and notes. • State police Reports and notes • ATF reports and notes. The Department provided a response on September 3, 2020, indicating it did not possess certain records and denying access to other portions pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Department’s response, Ms. David petitioned this office and this appeal, SPR20/1946, was opened as a result. While this appeal was pending, the Department provided a supplemental response dated October 22, 2020. 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Chief Robert Stocks SPR20/1946 Page 2 October 26, 2020 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 September 3rd and October 21st responses In its September 3, 2020 response, the Department states that it does not possess any State Police or ATF reports. With respect to the remaining records, the Department cites Exemptions (a) and (f) to withhold the records from disclosure. Exemption (a) The Department cites G. L. c. 66, § 10B to withhold responsive records from disclosure. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Chief Robert Stocks SPR20/1946 Page 3 October 26, 2020 G. L. c. 66, § 10B states in pertinent part: The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. G. L. c. 66, § 10B. Under Exemption (a), the Department claims that “[t]his case involves multiple individuals who possess firearms and firearms licenses, per Massachusetts General Laws that information cannot be released.” 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.

Chief Robert Stocks SPR20/1946 Page 4 October 26, 2020 Under Exemption (f) the Department explains that “[w]hile this exemption is not a blanket exemption i[t] applies to such information, the disclosure of which would prejudice investigative efforts. In particular, it applies to information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants.” The Department indicates that “[t]he records requested are still under investigation and if released could possibly jeopardize any current and/ or future investigative efforts. Also, releasing the report would put at risk the confidentiality of private citizens who otherwise would speak freely about matters under investigation. As a result, such information must be withheld under the law. In the Department’s October 22nd supplemental response, it states that “[a]t no point in the investigation is Ms. David listed as a victim, homeowner, witness or resident of the property. Typically, an ‘open incident’ report is released in redacted format to victims for insurance purposes only. The report lists multiple suspects, as well as the investigative techniques and information of multiple law enforcement agencies. As this is still an open case, releasing such information could negatively impact the investigative efforts of all personnel involved in the future.” The Department further explains that “[w]hile Ms. David indicates in her letter that she is ‘well aware’ that her sons have a license to carry, it is not the habit of the records department to assume that a family member knows said information. Public Records law states that ‘licensing authorities shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifle . . . as defined in said section 121 of said chapter 140.’” Burden of specificity Under the Public Records Law, the burden is on 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. With respect to Exemption (a), although G. L. c. 66, § 10B permits the nondisclosure of records “. . . divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition . . .[,]” it remains unclear how the statute allows for the withholding of the records in their entirety. Particularly, it is uncertain how the records cannot be redacted to preserve the anonymity of persons who own or possess firearms. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a). With respect to Exemption (f), the Department states that release of the records “. . . could possibly jeopardize any current and/ or future investigative efforts[.]” However, the Department did not provide any supporting information to demonstrate how disclosure of the responsive records or any segregable portion thereof would compromise its future investigative efforts or “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

Chief Robert Stocks SPR20/1946 Page 5 October 26, 2020 (f). It is additionally uncertain how confidential investigative techniques or the identities of voluntary witnesses cannot be redacted from the records to maintain confidentiality and preserve their anonymity, respectively. The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Ms. David with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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: Mary David