Dusty Christensen v. Massachusetts Department of State Police (SPR 20212444)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 6, 2021 SPR21/2444 Sean Farrell, Esq. Associate Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette, appealing the response of Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2021, Mr. Christensen requested: [1] The log entry and any written narrative for a motor vehicle stop that an MPS trooper made at approximately 12:20 a.m. on Thursday, July 29, on Route 391 in Chicopee, pulling over [named individual] for excessive speeding. [2] Any body worn camera video taken during a motor vehicle stop that an MPS trooper made at approximately 12:20 a.m. on Thursday, July 29, on Route 391 in Chicopee, pulling over [named individual] for excessive speeding. The Department provided a response on September 21, 2021, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Christensen petitioned this office and this appeal, SPR21/2444, 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

Sean Farrell, Esq. SPR21/2444 Page 2 October 6, 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. 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. The Department’s September 21st response In its September 21, 2021 response, the Department states that it “. . . was unable to locate any log entry or written narrative regarding the subject stop other than the warning issued to the operator. The Department has also identified six (6) body worn camera videos (BWCV) responsive to your request. However, please be advised that the Department has initiated an internal investigation relative to the subject stop. The subject videos depict police actions which are the subject of the investigation. Accordingly, given the existence of that investigation, the videos and citation you seek are not public records pursuant to G. L. c. 4, §7, cl. 26 (f)(investigative exemption).” The Department cites Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). 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. 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

Sean Farrell, Esq. SPR21/2444 Page 3 October 6, 2021 Reinstein, 378 Mass. at 289-90. Although the Department claims it has initiated an investigation regarding the subject stop, it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Conclusion Accordingly, the Department is ordered to provide Mr. Christensen 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: Dusty Christensen