Dan Carmichael v. Stoughton, Town of - Police Department (SPR 20202246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2246 Donna M. McNamara Chief of Police Town of Stoughton Police Department 26 Rose Street Stoughton, MA 02072 Dear Chief McNamara: I have received the petition of Daniel P. Carmichael appealing the response of the Town of Stoughton 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 October 7, 2020, Mr. Carmichael requested records relating to a certain investigation “including, but not limited to, internal investigation reports, transcripts, audio recordings, invoices, contracts for services, disclosures under G. L. c. 268A by either members of the Department or Billingsgate Associates LLC, any and all electronic communications, including, but not limited to, emails, text messages, and call records.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2100 Determination of the Supervisor of Records (November 5, 2020). SPR20/2100 was closed after this office learned that the Department had provided Mr. Carmicheal with a response on November 2, 2020. Unsatisfied with the Department’s response, Mr. Carmicheal petitioned this office and this appeal, SPR20/2246, 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). 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

Donna M. McNamara SPR20/2246 Page 2 December 2, 2020 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 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 November 2nd response In its November 2nd response, the Department indicates “[t]he enclosed responsive records have been redacted pursuant to exemption (f) of the Public Records Law.” 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. Under Exemption (f), the Department explains that “…exemption (f) has been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1960). For those reasons, absent authorization or a court order to produce information obtained during the investigation, the names, addresses and identifying details of

Donna M. McNamara SPR20/2246 Page 3 December 2, 2020 voluntary witnesses or complainants contained in the investigative reports may therefore be withheld from disclosure permanently. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 (1979). As such, the enclosed police records have been redacted pursuant to exemption (f) of the Public Records Law.” In his appeal, Mr. Carmicheal contends “[h]ere, the names of certain officers…appear to be redacted from the report. In this case…was not a ‘voluntary witness’ as the Town’s response seems to indicate. Rather, he was ordered to appear and provide information under the purported threat of discipline or other adverse employment action by the Town…[f]urther, the Town has already disclosed…involvement in this matter in a November 2, 2020 email from Chief McNamara to all employees of the Stoughton Police Department…[w]e believe that a case-by- case consideration, in this instance, favors disclosure and does not ‘prejudice the possibility of effective law enforcement’ or otherwise demonstrate a need to redact information under Exemption (f).” In light of Mr. Carmichaels appeal, and despite the Department’s response, the Department has not met its burden of specificity to redact the responsive records under Exemption (f). Specifically, it is unclear how the redactions are to preserve the anonymity of voluntary witnesses. The Department must clarify this matter. Additional Responsive Records In his appeal, Mr. Carmichael contends “…the Town did not produce or disclose all records that are believed to be in its possession.” Mr. Carmichael states “[i]n addition to the two- page letter outlining the Town’s invocation of exemption (f), an internal affairs report…a private investigation company contracted by the Town, was provided. No other records were produced or disclosed by the Town.” Mr. Carmichael indicates “[t]he IA Report repeatedly refers to certain records which were not included or disclosed in the Town’s November 2, 2020 response.” Mr. Carmichael further indicates “[u]pon information and belief, the Town and Billingsgate have signed an ‘Agreement to Provide Investigative Services.’…the Town is in possession of invoices from Billingsgate related to this public records request. The Town failed to disclose or produce these records in its November 2, 2020 response.” Mr. Carmichael also indicates “[t]he September 15, 2020 memorandum, as well as any subsequent responses and communications between Deputy Chief Holmes and the Town, fall within the records described in our October 7, 2020 request, specifically, ‘any and all records related to the taser investigation.’ These records were not disclosed or produced in the Town’s November 2, 2020 response.” 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) (written response must “identify any public records or categories of public records sough that are within the possession, custody, or control of the agency”).

Donna M. McNamara SPR20/2246 Page 4 December 2, 2020 Based on Mr. Carmicheal’s petition, it is unclear whether the Department possesses additional records responsive to his request. I find the Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Carmicheal 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: Mr. Daniel P. Carmichael, President of MCOP Local 461