Allison Jarmanning v. Tewksbury, Town of - Police Department (SPR 20211696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2021 SPR21/1696 John S. Voto Deputy Chief of Police Tewksbury Police Department 918 Main Street Tewksbury, MA 01876 Dear Deputy Chief Voto: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Tewksbury Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2021, Ms. Jarmanning requested 911 calls and police incident reports for identified individuals and specified address. The Department and Middlesex District Attorney’s Office (DAO) provided a response July 7, 2021. Unsatisfied with the July 7th response, Ms. Jarmanning petitioned this office and this appeal, SPR21/1696, 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

John S. Voto SPR21/1696 Page 2 July 22, 2021 The Department and DAO’s July 7th response In its July 7, 2021 response, the DAO provided a letter stating that the incident reports are “subject of an open and ongoing criminal case and are exempt from disclosure pursuant to exemption (f) (investigatory) of the Public Records Law. G.L. c. 4, § 7(26). As the agency prosecuting this matter we have an ethical obligation to refrain from making extrajudicial statements that have a substantial likelihood of materially prejudicing the proceedings or of heightening public condemnation of the accused. See Massachusetts Rules of Professional Conduct 3.6, 3.8(f)(2).” The July 7th response explained, “[d]isclosure of information or materials from the Commonwealth’s investigatory file may also impede a potential defendant’s right to select a jury that is untainted by undue pre-trial publicity. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976) (included among the purposes in providing this exemption [f] [is] the avoidance of premature disclosure of the Commonwealth’s case prior to trial).” The Department and DAO further explain “[a]ny such records are barred from public disclosure as records which are ‘specifically or by necessary implication exempted from disclosure by statute.’ M.G.L. c. 4, § 7(26)(a).” Also in the July 7th response to Ms. Jarmanning’s request for 911 calls, the Department and DAO explained “[i]t is our Office’s position that such communications are similarly barred from disclosure by this Office and the Tewksbury PD under MGL c. 41, section 97D as they concern reports of domestic violence. They are further exempt from disclosure under the investigatory exemption (f) for the reasons outlined in this morning’s response letter.” 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 Att’y 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.”

John S. Voto SPR21/1696 Page 3 July 22, 2021 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. The statute states in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality . . . G. L. c. 41, § 97D. Based on the Department and DAO’s July 7th response, it is unclear what type(s) of records are being withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Further, it is uncertain how the withheld records fall within the type of records contemplated in G. L. c. 41 § 97D. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Department and DAO must clarify this matter. 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

John S. Voto SPR21/1696 Page 4 July 22, 2021 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. 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. Bougas 371 Mass 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. To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, based on the Department and DAO’s July 7th response, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). The Department and DAO must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Jarmanning 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: Allison Jarmanning Daniel M. DeBlander, Esq.