Sean T. Delaney v. Worcester, City of - Law Department (SPR 20211341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2021 SPR21/1341 Michael Vigneux Records Access Officer City of Worcester 911 Lincoln Square Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Attorney Sean T. Delaney appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2021, Attorney Delaney requested “[a]ny and all reports relative to the investigation of the shooting and resulting death of [a named individual] which occurred on or about [a particular date] in the city of Worcester.” The City responded on May 24, 2021, claiming to withhold responsive records pursuant to Exemptions (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the City’s response, Attorney Delaney appealed, and this case 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

Michael Vigneux SPR21/1341 Page 2 June 9, 2021 Current Appeal In his appeal petition Attorney Delaney explains the following: Based upon [his] knowledge the City of Worcester conducted an initial investigation relative to this matter based upon the incident taking place within the city of Worcester. However, soon thereafter, the City of Worcester turned its information and reports over to the town of Berlin, Massachusetts for it to conduct its own investigation relative to where the decedent had purchased ammunition and other items used in the incident. . . . The Town of Berlin concluded its investigation on or about October 7, 2020. In addition, the town of Berlin turned over its reports to [Attorney Delaney’s] office. The Berlin reports reference having received the Worcester reports relative to this incident. The Town of Berlin’s investigation resulted in sanctions against [a certain company] for its illegal sale of ammunition to [the named individual]. Attorney Delaney further contends: [T]hat the City of Worcester inaccurately relies upon the Investigatory Exemption for the following reasons: There is no active investigation of the underlying incident. In fact, Worcester’s investigation concluded soon after the incident occurred in February 2020. As a result, disclosure of the materials will in no way prejudice effective law enforcement. The investigation concluded that it was a self-inflicted gunshot which led to the death of [the named individual]. So, there are no suspects related to the shooting. The Town of Berlin conducted its investigation and concluded the [named individual] was allowed to purchase ammunition from [a certain company] without being licensed to do so. That decision and sanction against [the company] was rendered on October 7, 202[0]. The City’s May 24th Response In its May 24, 2021 response, the City states that responsive “records pertain to an active and ongoing investigation and are being withheld from disclosure at this time pursuant to exemption (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).

Michael Vigneux SPR21/1341 Page 3 June 9, 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 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. Att’y 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. Under Exemption (f), the City states the following: The incident remains under active investigation and the records constitute evidence in the investigation. Disclosure of information contained within the requested records would compromise the integrity of the investigation and impede law enforcement from effectively carrying out its duties. Accordingly, the requested records are exempt from disclosure and are being withheld at this time. The City’s response did not contain the specificity required in a denial of access to public records. It is unclear what types of records the City is withholding under Exemption (f). G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, ------------------------------- 419 Mass. at 511. The City must identify the records in its possession that are responsive to this request. Further, the City states that the requested records are associated with an active investigation, but does not explain the subject of the investigation. Where Attorney Delaney has provided the dates and results of two investigations related to the incident in question, it is unclear how another investigation could be currently active, and what the subject of such an investigation could be. It is further 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 explain how segregable portions cannot be provided. Conclusion Accordingly, the City is ordered to provide Attorney Delaney with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its

Michael Vigneux SPR21/1341 Page 4 June 9, 2021 Regulations within ten 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, ~ ~-· er ./J .A.~·- ~.. .· Rebecca S. Murray Supervisor of Records cc: Sean T. Delaney, Esq.