Lisa Attardo v. Boston, City of - Police Department (SPR 20213234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2021 SPR21/3234 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Lisa Attardo 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 November 8, 2021, Ms. Attardo, referring to a specified incident, requested the following: 911 call, detective/officer notes of the incident, any communications amongst officers pertaining to this incident ie email or phone communications, any and all information pertaining to this incident The Department responded on November 29, 2021, denying the request and citing Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Ms. Attardo 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 agency or municipality 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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. SPR21/3234 Page 2 December 22, 2021 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 November 29th Response In its November 29, 2021 response, the Department cites Exemption (f) for withholding responsive records. See G. L. c. 4, § 7(26)(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). 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, 371 Mass at 62. 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. Under Exemption (f), the Department argues the following: The responsive records relate to an active and ongoing death investigation. The disclosure of the records before the close of the investigation would likely compromise the investigation’s integrity. As 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

Shawn A. Williams, Esq. SPR21/3234 Page 3 December 22, 2021 necessarily comport with the truth and thus will 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, one (1) month old. Burden of Specificity; Segregable Portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 Department has not met its burden of specificity in claiming Exemption (f) to withhold the responsive records in their entirety. The Department must identify all the records, categories of records, or portions of records in its possession that it intends to withhold from disclosure. Further, although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. For example, it is unclear how information such as the date and time of the incident, or the name of the responding officer would prejudice an ongoing investigation or prosecution. The Department must explain whether segregable portions of the responsive records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 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 Ms. Attardo with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lisa Attardo