Cam Goggins v. Boston, City of - Police Department (SPR 20220739)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2022 SPR22/0737; SPR22/0738; SPR22/0739; SPR22/0740 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 four petitions of Cam Goggins of Live Boston 617 Inc. appealing the responses of the City of Boston (City) to four requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2022, Mr. Goggins requested “the report(s), booking photo(s) and all other associated documents as it pertains to the arrest(s) of [four named individuals].” The City responded to each request on March 29, 2022, providing various responsive records, and stating that it was withholding others. Unsatisfied with the City’s responses, Mr. Goggins 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 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 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. SPR22/0737; SPR22/0738; Page 2 SPR22/0739; SPR22/0740 April 8, 2022 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 City’s March 29th Responses In each March 29, 2022 response, the City states that it is withholding identifying and booking photos responsive to each request pursuant to Exemption (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 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. Under Exemption (f), the City argues that the booking and identifying photos are associated with ongoing investigations and that release of the photos “at this time would be harmful to an open investigation and could alert persons of interest.” As to the identifying and booking photos, it is unclear how such photos could “alert persons of interest” or otherwise be harmful to open investigations when the four suspects in question are already named on the Boston Police Department’s news website. The City must clarify this. As to the records specifically pertaining to Jose Manuel Fontanez, the City argues the following: The records . . . requested (Jose Manuel Fontanez) are associated with an active and ongoing investigation. As such, [the] 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). Release of an identifying photo at this time

Shawn A. Williams, Esq. SPR22/0737; SPR22/0738; Page 3 SPR22/0739; SPR22/0740 April 8, 2022 would be harmful to an open investigation and could alert persons of interest. Based on the City’s response, it is unclear how the records pertaining to the above individual may be withheld in their entirety. Specifically, it is unclear how release of the responsive records could prejudice investigative efforts. The City 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). Additionally, the City must specifically identify the records it intends to withhold. See G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the City is ordered to provide Mr. Goggins with a response to his 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, '' . I . . - ~ - . Rebecca S. Murray Supervisor of Records cc: Cam Goggins