Mary Serreze v. New Bedford, City of - Police Department (SPR 20202533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2021 SPR20/2533 Officer Michael Boswell Records Access Officer City of New Bedford Police Department Central Records Bureau 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Mary Serreze, the News Director of WBSM 1420 AM, appealing the response of the City of New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Serreze requested “all police reports and/or charging documents relevant to an Oct. 12 altercation in New Bedford…” Previous Appeal This request has been the subject of a previous appeal. See SPR20/2286 Determination of the Supervisor of Records (December 8, 2020). I closed this previous appeal in light of a subsequent response provided by the Department on November 25, 2020. In its November 25th response, the Department asserts that it has withheld a responsive incident report pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the Department’s response, Ms. Serreze petitioned this office and this appeal, SPR20/2533, 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 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

Officer Michael Boswell SPR20/2533 Page 2 January 5, 2021 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. Current Appeal In its November 25, 2020 response, the Department states that it “has identified one responsive incident report,” and indicates that it is withholding this report pursuant Exemption (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 289-90. 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. Id. 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. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and

Officer Michael Boswell SPR20/2533 Page 3 January 5, 2021 identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its November 25th response, the Department explains that “the responsive incident report is a supporting document to an application for a criminal complaint which is pending before a court.” The Department further states that “[t]he report contains the names of witnesses, their statements as well as the reporting police officer’s observations and interim conclusions. This is information that if released by the Department at this time could interfere with the ongoing criminal case.” Based on the Department’s response, where the requested record is part of an ongoing investigation and prosecution, I find the Department has met its burden to withhold the report, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation or prosecution could impact the applicability of Exemption (f) to this record. Conclusion Accordingly, whereas I find the Department may permissibly withhold the requested report at this time, I will consider this administrative appeal closed. If Ms. Serreze is not satisfied with the result of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Serreze, WBSM 1420 AM Elizabeth Treadup Pio, Esq., Assistant City Solicitor