Mary Serreze v. New Bedford, City of - Police Department (SPR 20202534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2021 SPR20/2534 Officer Michael Boswell Records Access Officer City of New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Mary Serreze, News Director of WBSM, 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: 1. Any and all police reports and/or charging documents relevant to an Oct. 12 altercation in New Bedford involving an identified candidate for office involving an alleged assault at a political rally; 2. All police reports and logs relevant to an Oct. 28th bank robbery at the South Coast Federal Credit Union; and 3. The booking photo of an identified person from the Town of Carver who committed an armed robbery in February 2019 at JC’s Variety Store in New Bedford. Prior appeals The request for records was the subject of prior appeals. See SPR20/2286; SPR20/2287 Determination of the Supervisor of Records (Supervisor) (December 8, 2020). After the appeals were opened, the Department provided Ms. Serreze and this office with three individual written responses dated November 25, 2020. I closed the prior appeals upon receipt of the Department’s responses. In its November 25th response regarding the bank robbery at South Coast Federal Credit Union, the Department provided the police log for October 30, 2020, and denied Ms. Serreze’s request for the incident report in its entirety under Exemption (f) of the Public Records Law. As a result of the Department’s November 25th response pertaining to her request for the bank 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 SPR20/2534 Page 2 January 5, 2021 robbery at South Coast Federal Credit Union, Ms. Serreze petitioned the Supervisor, and the current appeal was opened. In its December 18th petition, Ms. Serreze indicates that the Department provided her with the incorrect police log. Ms. Serreze had requested the police log for October 28, 2020. In addition, Ms. Serreze objects to the Department’s withholding of the incident report for the robbery. 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) (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). Exemption (f) – Incident report In its November 25, 2020 response, the Department indicates it is withholding, in its entirety, the incident report for the October 28, 2020 bank robbery at the South Coast Federal Credit Union pursuant to 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). An investigative agency is not required to demonstrate prejudice to withhold

Officer Michael Boswell SPR20/2534 Page 3 January 5, 2021 the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290. In its November 25, 2020 response, the Department asserts, “[a]t present the responsive incident report is related to an ongoing investigation. The report contains the names of several witnesses, their statements as well as evidence gathered by the reporting police officer, and his observations and interim conclusions.” The Department posits that disclosure of the incident report will prejudice the possibility of effective law enforcement, and the disclosure is not in the public interest. The Department has not met its burden under the under the Public Records Law by applying a blanket exemption claim under Exemption (f). Under the Public Records Law, the burden shall be upon 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. The Department did not meet its burden of demonstrating how the responsive 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Police Log I find that the Department must provide Ms. Serreze with a copy of the October 28th police log as initially requested. Conclusion Accordingly, the Department is ordered to provide Ms. Serreze with a copy of the October 28, 2020 police log, and a response to her request for the incident report, in a manner consistent with this order, the Public Records Law and its Regulations within 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 Serreze, News Director, WBSM Elizabeth Treadup Pio, Esq., Assistant City Solicitor