Allison Jarmanning v. Boston, City of - Police Department (SPR 20210424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 5, 2021 SPR21/0424 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning of WBUR 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 December 23, 2020, Ms. Jarmanning requested the following records in 4 separate requests: Protest internal affairs records: 1. Records related to any internal affairs investigations. If these are still under investigation, I would like to receive the cover sheet or initial information about the accusation. Information should include when those investigations were opened and what prompted it (citizen complaint, internal referral, etc.) 2. Any use of force reports 3. Any citizen complaints Protest body cameras 1. Any records about any review of body camera footage from that night. This could include a formal review, report, memo, email message, etc. 2. Any records reflecting the identities of officers assigned cameras that night and the associated camera ID. Protest sergeant 1. Any records related to the identity and investigation of the sergeant captured on video on May 31 saying he struck people with his vehicle. Video was captured on Axon Body 2 X81331058, timestamp: T02:20: 17Z 2. 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. SPR21/0424 Page 2 March 5, 2021 2. Any records related to any individuals struck by a vehicle driven by a BPD officer Protest planning 1. Any communication before or after the protests describing the planning or response, including any after-action reports, or notes, memos, emails or other records describing any meetings or discussions about the police response to the protests 2. A list of officers assigned to respond to the protest that night. 3. Any training materials Boston police officers receive on how to respond to large events like protests. Specifically, I am requesting documents detailing content and schedule of trainings on the appropriate use of pepper spray, chemical weapons and batons, or any guidance issued around the use of these police-issued weapons[.] The Department provided responses on February 16, 2021, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s responses, Ms. Jarmanning petitioned this office and this appeal, SPR21/0424, 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 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 February 16th responses In its February 16, 2021 responses, the Department states, “[t]he records you requested are associated with an active and ongoing investigation. As such, your request is denied, as all

Shawn A. Williams, Esq. SPR21/0424 Page 3 March 5, 2021 records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. See G. L. c. 4, § 7 (26) (f). Disclosure of any responsive records would harm the investigative efforts of the Department.” 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. 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. The Department’s responses did not contain the specificity required in a denial of access to public records. Based on the Department’s responses, it is unclear what type(s) of records it is withholding under this exemption. 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 ...”); see also Globe Newspaper ---------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Department must identify the records in its possession that are responsive to this request. Further, the Department states that the requested records are associated with an active and ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, although the Department asserts that “[d]isclosure of any responsive records would harm the investigative efforts of the Department[,]” the Department did not provide any supporting information to demonstrate how disclosure of the responsive records would compromise or negatively impact the ongoing investigation or “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

Shawn A. Williams, Esq. SPR21/0424 Page 4 March 5, 2021 (f).” It is additionally uncertain how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain how segregable portions cannot be provided. Conclusion Accordingly, the Department is ordered to provide Ms. Jarmanning 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: Allison Jarmanning