Jim Haddadin v. Boston, City of - Police Department (SPR 20210234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12, 2021 SPR21/0234 Shawn A. Williams, Esq. Director of Public Records/Records Access Officer City of Boston One City Hall Square Boston, MA 02120 Dear Attorney Williams: I have received the petition of Jim Haddadin, of NBC10 Boston/Telemundo and Boston/NECN, appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2021, Mr. Haddadin requested access to and copies of “any written notices issued to [the Department] employees since Jan. 6, 2021 that pertain to the initiation of internal affairs proceedings; [and] [a]ll citizen complaints received since Jan. 6, 2021.” Mr. Haddadin requests that the records be provided in electronic format, such as a PDF file or Word document. On January 29, 2021, the Department provided a response denying Mr. Haddadin’s request in its entirety under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). As a result, on February 1, 2021, Mr. Haddadin petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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

Shawn A. Williams, Esq. SPR21/0234 Page 2 February 12, 2021 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). The Department’s January 29th response In its January 29, 2021 response, the Department asserts, “[g]overnment records custodians are permitted to redact or withhold portions of public records, so long as a specific exemption to the [Public Records Law] is cited. The exemption applicable to your request is the investigatory exemption. See G. L. c. 4, § 7(26)(f).” The Department also asserts, “[y]our request references the holding by the Appeals Court; please note that holding relates to a completed investigation. Any investigation initiated since January 6, 2021 is still an active and open investigation. Disclosure of information contemporaneous to any such investigation would harm investigative efforts, and as such your request is denied. You are encouraged to file a new request at a later date or to file a request for records associated with a completed internal affairs investigation.” 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 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. The Department denied Mr. Haddadin’s request, in its entirety, under Exemption (f) without sufficiently supporting the exemption to withhold each individual responsive record that pertains to Mr. Haddadin’s request. Mr. Haddadin did not specifically request the Internal Affairs investigation reports. In his January 14th request, Mr. Haddadin stated he is requesting “any written notices issued to the Department’s employees since January 6, 2021 that pertain to the

Shawn A. Williams, Esq. SPR21/0234 Page 3 February 12, 2021 initiation of Internal Affairs proceedings, [and] all citizen complaints received since January 6, 2021.” Therefore, it is unclear why the Department cannot provide the requested notices of the initiation of an internal affairs investigation, and the citizen complaints in a redacted format. Burden of specificity; duty to segregate 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 under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). Furthermore, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify what type of record(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Department is ordered to provide Mr. Haddadin with a response to the request, 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. Mr. Haddadin may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin, NBC10 Boston/Telemundo and Boston/NECN