Ryan P. McLane v. Framingham, City of - Police Department (SPR 20210460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2021 SPR21/0460 Brian Simoneau Framingham Police Department 150 Concord Street Framingham, MA 01702 Dear Mr. Simoneau: 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. Previous appeal This request was the subject of a previous appeal. See SPR21/0147 Determination of the Supervisor of Records (February 5, 2021). In my February 5th determination, I found that 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). However, I found the Department had not met its burden of specificity in explaining its redactions under Exemption (f). Subsequently, the Department provided a supplemental response on February 18, 2021. Unsatisfied with the Department’s response, Attorney McLane petitioned this office and this appeal, SPR21/0460, 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 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

Brian Simoneau SPR21/0460 Page 2 March 9, 2021 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. 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 18th response In its February 18, 2021 response, the Department states, “[t]he second sentence in paragraph 10 was redacted pursuant to G. L. c. 4, § 7(26)(j), which protects the identities of those issued firearms licenses. The redactions in paragraphs 13 and 14 were made pursuant to G. L. c. 4, § 7(26)(f). The redacted material refers to pending investigations conducted by another law enforcement agency. This exemption applies because the disclosure of the redacted information may compromise those investigations. Any further discussion of the particulars is not possible without disclosing the information which was been redacted.” Based on the Department’s response, it remains unclear how the redacted portions constitute investigatory materials. Nor did the Department 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). In camera inspection In the alternative, in order to facilitate my review, the Department may provide this office with un-redacted copies of responsive records for in camera inspection. See 950 C.M.R.

Brian Simoneau SPR21/0460 Page 3 March 9, 2021 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department is ordered provide a further response regarding its Exemption (f) claim or provide the records for an in camera inspection without delay. Please be advised that, unlike the materials provided for in camera review, any additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan McLane