Ryan P. McLane v. Framingham, City of - Police Department (SPR 20210147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0147 Lieutenant Patricia Grigas Framingham Police Department 150 Concord Street Framingham, MA 01702 Dear Lieutenant Grigas: I have received the petition of Ryan McLane, Esq. of McLane Law appealing the response of the Framingham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 22, 2020, Attorney McLane requested: Any investigation notes, records and any other documents defined under G.L. c. 4 § 7(26), related to [an identified individual’s] license plate number . . . being run by the City of Framingham Police Department and/or the Framingham State University Police Department, or any other agency or person. The Department provided a response on January 11, 2021, which included responsive records in redacted form. The Department claims the redacted information is exempt pursuant to Exemptions (f) and (j) of the Public Records Law. G. L. c. 4, § 7(26)(f), (j). Unsatisfied with the Department’s response, Attorney McLane petitioned this office and this appeal, SPR21/0147, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney McLane’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Lieutenant Patricia Grigas SPR21/0147 Page 2 February 5, 2021 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 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 January 11th response In its January 11, 2021 response, the Department states that it redacted responsive records under Exemptions (f) and (j). 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, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y 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

Lieutenant Patricia Grigas SPR21/0147 Page 3 February 5, 2021 would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department states that it “. . . must redact your request under the Exemption F –the Investigative Exemption states ‘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[.]’” While the Department claims it redacted records under Exemption (f), it is unclear how the redacted portions constitute investigatory materials. It is additionally not certain whether the records pertain to an ongoing investigation. Further, the Department did not demonstrate how disclosure of the redacted information “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). Exemption (j) Exemption (j) of the Public Records Law permits a records custodian to withhold or redact portions of records containing: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards G. L. c. 4, § 7(26)(j). The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. A records custodian may withhold an entire firearms record if the requestor knows with certainty that this particular record pertains to a specific address or individual. In this instance, redaction would be futile as it would not protect the identity of the license holder(s). See id.; see also G. L. c. 140, §§ 121-131P. Under Exemption (j), the Department explains that “. . . the exemption does not permit the records custodian to withhold the firearm application or identification card in its entirety. Exemption (j) allows the identifying data, in particular, the name and address of the licensee to be deleted from the record prior to disclosure. It is exceptional that there are both an exemption prohibiting the release of the identity and a separate statute mandating confidentiality of records. . . . G.L. c. 140, §§ 121-131P (discussing sale of firearms).”

Lieutenant Patricia Grigas SPR21/0147 Page 4 February 5, 2021 To the extent that the Department redacted only the name and address of a person contained in an application for a license to carry firearms, the Department may permissibly withhold that portion from disclosure under Exemption (j). Conclusion Accordingly, the Department is ordered to provide Attorney McLane 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: Ryan McLane