Sadiq Reza v. Lexington, Town of - Police Department (SPR 20220716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2022 SPR22/0716 Donna Dutton Administrative Assistant Lexington Police Department 1575 Massachusetts Avenue Lexington, MA 02420 Dear Ms. Dutton: I have received the petition of Sadiq Reza appealing the response of the Lexington Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 1, 2022 Mr. Reza requested the following records for an identified address: 1. Incident report and any other reports generated. 2. 911 call(s) and communications, and any other recorded conversations between officers and civilians. 3. All police communications, including radio transmissions, calls, text messages or others, between police officers involved in the incident and subsequent investigation. 4. All video footage captured or preserved relating to the incident, including but not limited to body-worn cameras. 5. The names of all officers who responded to the call and were involved in communications, investigation, and the reports relating to it. 6. All other information about the incident that is not exempt from public disclosure. The Department responded on March 17, 2022. Unsatisfied with the response, Mr. Reza petitioned this office and this appeal, SPR22/0716, 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). 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

Donna Dutton SPR22/0716 Page 2 April 8, 2022 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). The Department’s March 17th Response In its response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. 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. Attorney 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. Bougas 371 Mass 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.

Donna Dutton SPR22/0716 Page 3 April 8, 2022 In its response, the Department states, “[t]he reports have been denied in accordance with the information clearly relates to information which would jeopardize a current investigation.” Upon review, the Department does not describe how the disclosure of the information would reveal confidential investigative techniques that are unique to the Department nor how the requested records are part of the investigation. It is also uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Further, it is unclear why the Department cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. As a result, I find that the Department did not satisfy its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Mr. Reza with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Sadiq Reza