Dusty Christensen v. Massachusetts Department of State Police (SPR 20212769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2769 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 the 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. Previous appeal This request was the subject of a previous appeal. See SPR21/2444 Determination of the Supervisor of Records (October 6, 2021). In my October 6th determination, I found the Department had not met its burden to withhold responsive records, in their entirety, under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Accordingly, the Department was ordered to provided Mr. Christensen with a supplemental response. Subsequently, the Department provided a response on October 21, 2021. Unsatisfied with the Department’s response, Mr. Christensen petitioned this office and this appeal, SPR21/2769, was opened as a result. 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. SPR21/2769 Page 2 November 4, 2021 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. The Department’s October 21st response In its October 21, 2021 response, the Department reiterates that it “. . . identified six (6) body worn camera videos (BWCV) responsive to [Mr. Christensen’s] request, but denied the request, pursuant to G. L. c. 4, §7, cl. 26 (f)(investigative exemption), due to the fact that there is an on-going internal investigation relative to the subject stop. As previously stated, the subject videos depict police actions which are the subject of the investigation.” The Department asserts, “[t]he premature public disclosure of investigative records, and, in this case, body worn camera video, and their general publication could influence witnesses’ rendition of events and could be used to sway the investigator’s findings and recommendations. Generally speaking, accessing prematurely disclosed records could provide a pre-view of events which could assist targets and/or witnesses in creating a fictitious narrative of events that aligns with the timeline of the events under investigation. For these reasons, SPR has consistently determined that the public interest in preserving investigative integrity outweighs the public’s right to access. [See, e.g. SPR20/2185; SPR21/2423; SPR12/176; SPR14/110]. For these reasons, the videos you seek are not subject to public disclosure at this time.” 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

Sean Farrell, Esq. SPR21/2769 Page 3 November 4, 2021 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 Reinstein, 378 Mass. at 289-90. To the extent the disclosure of the records would prejudice an ongoing investigation, the Department may permissibly withhold those responsive records 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: Dusty Christensen