David Zuares v. Oxford, Town of - Police Department (SPR 20211245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2021 SPR21/1245 Michelle A. Jenkins Records Access Officer Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of Attorney David Zuares appealing the response of the Town of Oxford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2021, Attorney Zuares’ office requested “copies of any and all documents or reports relating to the Oxford Police and Fire Department’s response to an incident that occurred on [a certain date] at [a particular address].” Previous Appeal This request was the subject of a previous appeal. See SPR21/1027 Supervisor of Records Determination (May 5, 2021). In my May 5th determination, I ordered the Oxford Police Department (Department) to provide Attorney Zuares with a response to his request. Subsequently, the Department responded on May 17, 2021, asserting it was withholding responsive records under Exemption (f) of the Public Records Law. Unsatisfied with the Department’s response, Attorney Zuares appealed, and this case was opened as a result. Please note that while the Police Department provided the previous responses to Attorney Zuares, he notes in his appeal petition that his original request was directed to the Town and intended to include both the Police Department and Fire Department. Accordingly, this determination letter is addressed to the Town, and I will refer to the Police Department’s letter of May 17, 2021 as the Town’s response. 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 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

Michelle A. Jenkins SPR21/1245 Page 2 June 2, 2021 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. Current Appeal In his appeal petition, Attorney Zuares contends that “the Town’s letter does not contain the specificity required in a denial of access to public records, and therefore, constitutes an impermissible ‘blanket’ denial of the request.” He further argues the following: Here, the Town of Oxford has failed to meet its burden of explaining with specificity how the requested records, categories of records, and portions of records are exempt from disclosure. Merely stating that there is an “ongoing investigation” is insufficient to justify the withholding of all portions of all responsive records under the Public Records Law. See e.g. Reinstein, 378 Mass. at 290-291. The fact that the Town’s response denied the ---------- request in its entirety and refused to produce or even identify any specific records or portions of records is further evidence of its inadequacy under the Public Records Law. The Town has failed to prove that the disclosure of all portions of each and every responsive record would “so prejudice the possibility of law enforcement that such disclosure would not be in the public interest.” See id. The Town has not even attempted to describe with specificity how the exemption applies to each portion of each record. The Town’s May 17th Response In its letter of May 17, 2021, the Town indicates it “do[es] not have care/custody of all records pertaining to this event.” Further, the Town indicates that it is withholding responsive records under Exemption (f) of the Public Records Law. 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).

Michelle A. Jenkins SPR21/1245 Page 3 June 2, 2021 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. 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 289-290. As a matter of course, 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 Town states the following: As [the Police] department is currently involved with the District Attorney’s Office in an ongoing investigation into this matter, [the Town] will not be able to release [the records] now referencing Exemption (f) of the public records law. The disclosure of such materials would probably prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G.L. c. 4, § 7 (26)(f). In camera inspection In order to facilitate a determination as to the applicability of the exemption claimed by the Town to withhold responsive records in their entirety, the Town must provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’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

Michelle A. Jenkins SPR21/1245 Page 4 June 2, 2021 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. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of A representative sample of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Zuares, Esq. Anthony P. Saad, Chief of Police