Walter Wuthmann v. Somerville, City of (SPR 20210370)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2021 SPR21/0370 Francis Wright Jr. City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Mr. Wright: I have received the petition of Walter Wuthmann of WBUR News appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2021, Mr. Wuthmann requested “[a] full unredacted copy of the internal investigation into [an identified Somerville Police Officer] which concluded on April 14, 2008, with a finding of ‘exonerated.’” The City provided a response on February 11, 2021, including responsive records in redacted form pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the City’s response, Mr. Wuthmann petitioned this office and this appeal, SPR21/0370, was opened as a result. Based on Mr. Wuthmann’s petition, it appears he is only appealing the Department’s redactions under Exemption (f). While this appeal was pending, the City provided a supplemental response on February 18, 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. 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

Francis Wright Jr. SPR21/0370 Page 2 March 1, 2021 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 City’s February 11th and 18th responses In its February 11, 2021, and February 18, 2021 responses, the City claims it redacted identifying information regarding voluntary witnesses under 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, 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 would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and 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); Bougas, 371 Mass. 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. Under Exemption (f), the City states “. . . redactions have been made for details in

Francis Wright Jr. SPR21/0370 Page 3 March 1, 2021 witness statements, identity of civilians, or witness identities, ‘which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness.’ Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983). This includes redactions . . . for witness and complaint names, home addresses, location of the incident (which indicates home address of the complainant/witnesses), telephone numbers, work addresses of civilians, and dates of birth, which could if disclosed directly or indirectly identify the complainant/identity of civilians in this matter.” Where the City states that it redacted identifying information of civilian witnesses, I find the City may properly claim Exemption (f) in withholding, from the records, the identities and identifying information of the complainant and voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Wuthmann is not satisfied with the resolution 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: Walter Wuthmann