Catherine Kelleher v. Hanover, Town of - Police Department (SPR 20210716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2021 SPR21/0716 Lt. Gregory Nihan Records Access Officer Hanover Police Department 129 Rockland Street Hanover, MA 02339 Dear Lt. Nihan: I have received the petition of Catherine Kelleher appealing the response of the Hanover Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2021, Ms. Kelleher requested records of a certain “[b]urglary, forced entry” that occurred on a specified date. The Department responded on the same day, providing an incident report responsive to Ms. Kelleher’s request. On March 4, 2021, the Department indicated that the incident report was redacted pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Previous Appeal This request was the subject of a previous appeal. See SPR21/0575 Determination of the Supervisor of Records (March 19, 2021). On March 11, 2021, the Department provided a subsequent response to Ms. Kelleher, attaching another copy of the incident report, this time with certain redactions removed. In an email on March 18, 2021, the Department provided a further subsequent response, containing the Department’s explanation of how Exemption (f) applied to the remaining redactions. I closed appeal SPR21/0575 in light of the Department’s supplemental responses. Unsatisfied with that supplemental response, Ms. Kelleher further appealed and this case was opened as a result. Current Appeal In her appeal petition, Ms. Kelleher argues that the Department “merely describes two investigatory techniques without explaining how they may create any potential prejudice to future law enforcement.” She further argues “based on the size of the remaining redactions and 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

Lt. Gregory Nihan SPR21/0716 Page 2 April 5, 2021 the context of the information surrounding those redactions, [she] suspect[s] that there is still some information that does not fall under the ‘investigatory exemption’ that remains inadvertently redacted.” 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. The Department’s March 4th and March 18th Responses On March 4, 2021, the Department indicated that the incident report was redacted pursuant to Exemption (f) of the Public Records Law. On March 18th, the Department went on to “further explain the redactions in the report, specifically how that information, if made public, could be detrimental to law enforcement practices in the future.” See G. L. c. 4, § 7(26)(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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity

Lt. Gregory Nihan SPR21/0716 Page 3 April 5, 2021 of voluntary witnesses. Antell v. Attorney 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 289-90. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f) the Department asserts “[t]he first redaction in regard to forensic evidence has to do with a particular piece of evidence found at the scene and how it would be processed and how it could be useful if the case progressed. The second redaction dealt with information sharing with other law enforcement agencies. This piece may be less prejudicial than the first . . . It basically would describe the mechanism used for information sharing.” In Camera Inspection In order to facilitate a determination as to the applicability of Exemption (f) to the redactions made by the Department, I request that the Department provide this office an un- redacted copy of the incident report for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return it to your custody, destroy any copies, and issue an opinion on the public or exempt nature of the record. 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. 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)-(e).

Lt. Gregory Nihan SPR21/0716 Page 4 April 5, 2021 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Kelleher