Neal McNamara v. Boston, City of - Police Department (SPR 20222199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2022 SPR22/2199 Shawn A. Williams, Esq. Director of Public Records Records Access Officer Boston Police Department One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Neal McNamara appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2022, Mr. McNamara requested “[a]ny bodycam or dashcam videos of an incident at 2:50 PM on Thursday, August 25, 2022, involving the Youth Violence Strike Force and a group along Mt. Pleasant Avenue in Roxbury.” The Department responded on September 27, 2022. Unsatisfied with the Department’s response, Mr. McNamara petitioned this office and this appeal, SPR22/2199, 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. 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. SPR22/2199 Page 2 October 11, 2022 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 Department September 27th Response In its September 27, 2022 response, the Department states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law. 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 289-290. 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.

Shawn A. Williams, Esq. SPR22/2199 Page 3 October 11, 2022 Under Exemption (f), the Department argues the following: The responsive records relate to an ongoing investigation. The disclosure of the records before the close of the investigation would likely compromise the investigation’s integrity. As the investigation is still active, further witnesses, including the criminal suspect, may need to be interviewed or re-interviewed. Affording the criminal suspect or other potential witnesses a view of the evidence before that witness’s interview or before the conclusion of the investigation would allow said witness(es) the opportunity to tailor their testimony to their benefit, which may not necessarily comport with the truth and thus will probably so prejudice the investigation. In conclusion, the Department asserts that it has met its burden of proving by a preponderance of the evidence that exemption (f) applies to the responsive records as they are related to an ongoing investigation, a little over one (1) month old. Current Appeal In his appeal, Mr. McNamara states, “[t]he exemption cited in the denial (f) covers ‘investigatory materials necessarily compiled out of the public view.’ But the records I requested were compiled completely in public view and involved footage of an incident that happened in a public street during daytime hours. The investigation into any crime that may have occurred is separate from the video/audio recording of an arrest that took place in public. The Boston police department has already publicized the incident in question, describing it in great detail in a post on the department’s BPDNews.com website.” Upon review, I find that the Department may permissibly withhold, the name and identifying details of any victims, complainants and voluntary witnesses. While the Department states that the requested records are associated with an active and ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Additionally, it is unclear how video recordings from body cameras that are in full view of the public would constitute “investigatory materials necessarily compiled out of the public view.” See G. L. c. 4, § 7(26)(f). It is additionally uncertain how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (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). The Department must explain how segregable portions cannot be provided. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. McNamara 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.

Shawn A. Williams, Esq. SPR22/2199 Page 4 October 11, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Neal McNamara