Din R. Jenkins Sr. v. Stoughton, Town of - Police Department (SPR 20211227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2021 SPR21/1227 Janelle M. Austin, Esq. KP Law 101 Arch Street, 12th Floor Boston, MA 02110 Dear Chief McNamara: I have received the petition of Din R. Jenkins, Sr. appealing the response of the Town of Stoughton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jenkins requested “copies of all reports, documents, recordings, notes, emails and all other information created due to or used during any investigation” that are in a certain internal affairs file. Previous appeals This request was the subject of previous appeals. See SPR20/2348 Determination of the Supervisor of Records (December 14, 2020); SPR21/0133 Determination of the Supervisor of Records (February 4, 2021). In my February 4th determination, I found the Department had not met its burden to explain how requested data falls within the definition of CORI. I also found the Department had not established that why the recording could not be redacted under Exemption (f) to preserve the identity of the witness. The Department was ordered to provide Mr. Jenkins with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided said response on February 23, 2021. Unsatisfied with the Department’s response, Mr. Jenkins petitioned this office and this appeal, SPR21/1227, 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). 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

Chief Donna McNamara SPR21/1227 Page 2 May 27, 2021 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 February 23rd response In its February 23rd response, the Department states “as previously asserted, the confidential DCJIS data (offline search) is being properly withheld and redacted pursuant to 803 CMR 7.00, et seq. and 28 CFR 20 pursuant to exemption (a) of the Public Records Law.” The Department further states “…the recordings require withholding under exemption (f) of the Public Records Law and redaction is not possible in this instance.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Chief Donna McNamara SPR21/1227 Page 3 May 27, 2021 CORI The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its previous response, the Department states that “[w]ith respect to the CJIS off-line search for a specifically identified third-party conducted as part of the police investigation, which, as you know was previously redacted from the records provided, such information is governed by the confidentiality requirements in 803 CMR 7.00 as that regulatory provision operates through exemption (a) of the Public Records Law. Specifically, the DCJIS regulations state as follows…” In his appeal, Mr. Jenkins contends “[t]his record has no CORI implications as there are no criminal accusations at this time.” 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

Chief Donna McNamara SPR21/1227 Page 4 May 27, 2021 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. 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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 career." Id. at 438. In its response, the Department posits “…if the recordings were provided, the identity of the witnesses would be revealed to the requestor due to the requestor’s personal knowledge of the voice of the witnesses, as he is an officer with the Stoughton Police Department. The Stoughton Police Department does not have a means to disguise individual’s voices on the interview recordings, as such the recordings require withholding under exemption (f)… [w]here identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record and the identity of the individuals at issue is known to the requestor, such as in this matter, the responsive record may be withheld in its entirety.” Where it appears Mr. Jenkins knows the identity of the witness, I find the Department may permissibly withhold the recorded interview of the voluntary witness from disclosure under Exemption (f), as any redactions to preserve the witness’s identity may be futile in this instance. 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

Chief Donna McNamara SPR21/1227 Page 5 May 27, 2021 familiar with the individual and his career, such as co-workers. See Globe Newspaper Co., 388 Mass. at 438. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to redact the responsive record, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to your custody 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. 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. Conclusion The Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Din R. Jenkins, Sr. Chief Donna McNamara