Justin Hagenbuch v. Holden, Town of - Police Department (SPR 20220070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2022 SPR22/0070 Timothy Sherblom Chief of Police Holden Police Department 1370 Main Street Holden, MA 01520 Dear Chief Sherblom: I have received the petition of Justin Hagenbuch appealing the response of the Holden Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 22, 2021, Mr. Hagenbuch requested, “all Police Reports involving my name since January 17, 2015.” The Department provided a response and fee estimate on January 4, 2022. Unsatisfied with the Department’s response, Mr. Hagenbuch petitioned this office and this appeal, SPR22/0070, 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. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must 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

Chief Timothy Sherblom SPR22/0070 Page 2 January 20, 2022 reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s January 4th Response On January 4, 2022, the Department denied access to certain responsive records under Exemptions (a) and (f) of the Public Records Law. 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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." 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

Chief Timothy Sherblom SPR22/0070 Page 3 January 20, 2022 records are to be provided; the statute must expressly limit access to the listed individuals or entities. 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 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. Id. 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. In its January 4, 2022 response, the Department states that certain records are being withheld as they relate to, “domestic violence, restraining orders, and/or sexual assault for which you were not the victim” pursuant to G.L. c. 41, § 97D and § 98F. To the extent that the responsive records are those restricted from disclosure in their entirety by the Legislature under G. L. c. 41, § 97D and § 98F, I find that those records may be withheld. See G. L. c. 41, § 97D (providing that these reports “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, § 98F (providing

Chief Timothy Sherblom SPR22/0070 Page 4 January 20, 2022 that police logs containing “any information concerning responses to reports of domestic violence, rape or sexual assault” shall not be a public record). In its January 4, 2022 response, the Department also stated the Public Records Law “allows us to charge up to $25/hour for search, legal review, and redaction time. Preparing these records will take the [Department] approximately 2.0 total hours of work for a fee of $50.00.” The Department has not demonstrated that it assessing time for segregation and redaction that is required by law. Further, to the best of my knowledge, the Department has not submitted a petition under G. L. c. 66, § 10(d)(iv) to charge for segregation and redaction for Exemption (f) of the Public Records Law. Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. It is unclear to what extent the Department intends to charge Mr. Hagenbuch for redactions under Exemption (a) and Exemption (f) respectively. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide the requestor with an additional response, 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: Justin Hagenbuch