Joseph Viglione v. Medford, City of - Police Department (SPR 20211257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2021 SPR21/1257 Lieutenant Joseph Casey Medford Police Department 100 Main Street Medford, MA 02155 Dear Lieutenant Casey: I have received the petition of Joseph Viglione appealing the response of the City of Medford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2021, Mr. Viglione requested “documents / police report(s) that include still photographs and video that [an identified individual] viewed of [an identified individual] at the Bank of America.” The Department provided a response on May 19, 2021, indicating responsive records were being withheld pursuant to Exemption (f). Unsatisfied with the Department’s response, Mr. Viglione petitioned this office and SPR21/1257 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. 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

Lieutenant Joseph Casey SPR21/1257 Page 2 June 2, 2021 The Department’s May 19th response In its May 19th response, the Department indicates “[t]he case remains open, any video or photographs are evidentiary and are being withheld under the investigatory exemption, exemption f of the public records statute.” 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. 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. Subsequent to the opening of this appeal, the Department provided a supplemental response to this office on May 27, 2021. In its May 27th response, the Department indicates, “the Department has withheld video and photographs in regards to an incident in which an entry / exit door of Bank of America ATM vestibule was damaged… [t]he Officers who investigated the incident determined that probable cause existed to charge the individual with wanton property damage and an application for a criminal complaint was filed with Somerville District Court requesting a hearing with the Clerk Magistrate for a determination of probable cause to go forward with the criminal charges. As the Clerk Magistrates probable cause hearing has not yet occurred the case remains open pending the conclusion of the prosecutorial process.” The Department posits “…release of the video and photographs would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Although the Department asserts that “…release of the video and photographs would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” the Department did not provide sufficient information to demonstrate

Lieutenant Joseph Casey SPR21/1257 Page 3 June 2, 2021 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 (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 clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Viglione 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: Joseph Viglione