Eva Jellison v. Springfield, City of - Police Department (SPR 20221835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2022 SPR22/1835 Stephen G. Roche, Esq. Second Associate City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Eva Jellison appealing the response of the Springfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2022, Ms. Jellison requested documents, including police notes, relating to specific murders and specific court cases. On August 2, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Jellison petitioned this office and this appeal, SPR22/1835, 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 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Stephen G. Roche, Esq. SPR22/1835 Page 2 August 22, 2022 custodian must provide the responsive records. The Department’s August 2nd Response In its August 2, 2022 response, the Department provides one responsive record and cites Exemption (f) to withhold the remaining responsive 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. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 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 asserts that, The release of the records you request could compromise the integrity of investigative efforts such as reveal confidential information, the identity and contact information of witnesses, police investigatory techniques, and other sensitive law enforcement information. This information could also be utilized at a later time to compromise future law enforcement activities related to the investigation and prevention of crime. The integrity of the investigative process is vital, which is these material are gathered and secured out of the public view. 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

Stephen G. Roche, Esq. SPR22/1835 Page 3 August 22, 2022 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. 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 Department’s response did not contain the specificity required in a denial of access to public records. It is unclear why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See Reinstein, 378 Mass. at 289- 90 (the statutory exemptions are narrowly construed and are not blanket in nature). Further, the Department has not demonstrated how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, I find the Department must identify the records in its possession that are responsive to the request. To deny access to a record or portion of 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Jellison with a response to the request, 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, Manza Arthur Supervisor of Records cc: Eva Jellison