Walter Korzeniowski v. Cambridge, City of - Office of the City Clerk (SPR 20222058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2022 SPR22/2058 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Attorney Walter J. Korzeniowski appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2022, Attorney Korzeniowski requested “the 911 recording of the call made relative to” a specified incident report. Previous Appeal This request was the subject of a previous appeal. See SPR22/0986 Determination of the Supervisor of Records (May 6, 2022). In my May 6th determination, I ordered the City to clarify whether segregable portions of the responsive audio recordings can be provided. Subsequently, the City responded on July 18, 2022, providing responsive audio recordings in redacted form. Unsatisfied with the City’s response, Attorney Korzeniowski 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. 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

Seah Levy SPR22/2058 Page 2 September 21, 2022 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 custodian must provide the responsive records. Current Appeal In his appeal petition, Attorney Korzeniowski contends the following: [W]hile ... the City of Cambridge did provide a partially redacted audio recording of the 911 call in question, the extent of the redactions goes well beyond the scope of [the Supervisor’s] Order in that any mention of the manner or mechanism by which the Respondent was injured was redacted. There is no legitimate legal basis for redacting that information as it would not identify the individual making the call or lead to the identification of the caller as a voluntary witness. The City’s April 7th and July 18th Responses In its April 7, 2022, and July 18, 2022 responses, the City indicates that it has redacted the responsive records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). In its July 18th response, the City also indicates that “information that would otherwise be redacted pursuant to G. L. c. § 7(26)(c) to protect confidential medical information has been left audible.” 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

Seah Levy SPR22/2058 Page 3 September 21, 2022 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. 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 April 7th response, the City argues the following under Exemption (f): The City of Cambridge seeks to protect citizen witnesses who make 911 calls and to encourage all citizens to come forward and speak freely and candidly when reporting emergencies and police matters. Producing all such calls pursuant to public records requests would defeat the City’s vital public safety interests, would act as a deterrent to callers, and is not required based on Exemption (f). In its July 18th response, the City further argues that “redactions have been made for those portions of the audio recording that would identify the individual making the call or lead to the identification of the caller as appropriate to preserve the anonymity of a voluntary witness.” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the City to redact the responsive records, the City must provide this office with an un- redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Seah Levy SPR22/2058 Page 4 September 21, 2022 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Walter J. Korzeniowski, Esq.