Ryan Kath v. Boston, City of - Public Records (SPR 20212737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2021 SPR21/2737 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Ryan Kath, of NBC10 Boston, appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 2, 2021, Mr. Kath requested “. . . all available video that depicts a crash between two Green Line trolleys on July 30, 2021 near the intersection of Commonwealth Ave and Pleasant St.” Previous appeal The request was the subject of a previous appeal. See SPR21/2327 Determination of the Supervisor of Records (September 23, 2021). In my September 23rd determination, I found the Department had not met its burden of specificity to withhold a responsive video recording under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Accordingly, the Department was ordered to provide Mr. Kath with a response. Subsequently, on October 15, 2021, the Department provided a supplemental response. Unsatisfied with the Department’s response, Mr. Kath petitioned this office and this appeal, SPR21/2737, 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. 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

Shawn A. Williams, Esq. SPR21/2737 Page 2 November 2, 2021 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 October 15th response In its October 15, 2021 response, the Department asserts that the requested records “. . . are associated with an active and ongoing criminal investigation. As such, your request is denied, as all records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. See G. L. c. 4, § 7 (26) (f).” Citing Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 (1979) and Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976), the Department explains that “[t]he responsive records consist of video footage before and after the accident referenced in the request. Furthermore, criminal charges were issued against an individual involved with the crash. The disclosure of the video footage before the close of the investigation would likely compromise the investigation’s integrity.” Additionally, the Department posits that “[a]s the investigation is still active, further witnesses, including the criminal suspect, may need to be interviewed or re-interviewed. Affording the criminal suspect or other potential witnesses a view of the evidence before that witness’s interview or before the conclusion of the investigation would allow said witness(es) the opportunity to tailor their testimony to their benefit, which may not necessarily comport with the truth and thus probably so prejudice the investigation. In conclusion, the Department asserts that it has met its burden of proving by a preponderance of the evidence that exemption (f) applies to the responsive records as they are related to an active and ongoing investigation, less than two (2) months old.” 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).

Shawn A. Williams, Esq. SPR21/2737 Page 3 November 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 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. Where the video recording pertains to an ongoing investigation, I find the Department may permissibly withhold the responsive record from disclosure under Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Kath