J.C. Hyness v. Boston, City of - Police Department (SPR 20221595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 27, 2022 SPR22/1594; SPR22/1595; SPR22/1596; SPR22/1602 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petitions of J.C. Hyness, of Live Boston 617 Inc., appealing the responses of the City of Boston (City) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2022 and June 28, 2022, J.C. Hyness made the following four requests: [1] …the report(s) booking photo(s) and all other associated documents as it pertains to the arrest(s) of [named person]… [2] …the report and all BWC footage of any officer who discharged their weapon during the incident at Shattuck Hospital on [specified date] that resulted in the arrest of [named person]. [3] …the report and BWC footage of all officers who discharged their weapon during the following incidents: 1) November 9, 2021- Ferndale Street, Mattapan[;] 2) November 6, 2021 Ingleside Street in Dorchester. [4] …the report and BWC Footage (only of the primary unit) as it relates to the arrest on Helen Street…[.] On June 11, 2022, the City provided four responses. Unsatisfied with the City’s responses, J.C. Hyness petitioned this office and these appeals, SPR22/1594; SPR22/1595; SPR22/1596; and SPR22/1602, were 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 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. SPR22/1594; SPR22/1595; SPR22/1596; Page 2 SPR22/1602 July 27, 2022 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. 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 City’s July 11th responses In its July 11, 2022 responses, the City indicated that all the requested records are being withheld under 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.

Shawn A. Williams, Esq. SPR22/1594; SPR22/1595; SPR22/1596; Page 3 SPR22/1602 July 27, 2022 In its July 11, 2022, response responding to the June 25th request, the City stated, “…release of an identifying photo at this time would be harmful to an open investigation and could alert persons of interest. As such, this request is denied at this time under the investigatory exemption to the public records law. You may file a new request at a later date to determine whether the conditions regarding the status of this matter have changed, and a new response will be provided at that time. G. L. c. 4, § 7 (26) (f).” In the City’s additional July 11th responses, responding to the requests on June 28th, the City stated, “[t]he records you requested are associated with an active and ongoing investigation. As such, your 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). Disclosure of any responsive records would harm the investigative efforts of the [City].” Burden of specificity in claiming exemptions Under 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); Dist. Attorney v. Flatley, 419 Mass. 507, (1995). See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City’s responses did not contain the specificity required in a denial of access to public records. Specifically, the City has not met its burden to show how the withheld records fall within an exemption. As a result, I find the City did not satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the City is ordered to provide J.C. Hyness with a response to these requests, 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.

Shawn A. Williams, Esq. SPR22/1594; SPR22/1595; SPR22/1596; Page 4 SPR22/1602 July 27, 2022 Sincerely, Manza Arthur Supervisor of Records cc: J.C. Hyness