Nhut Huynh v. Springfield, City of - Police Department (SPR 20222383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2022 SPR22/2383 Stephen G. Roche, Esq. 2nd Associate City Solicitor City of Springfield 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Nhut Huynh appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2022, Mr. Huynh requested “the complete case’s file ... for an incident that happened in the city of Springfield on June 15, 2002.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2051 Determination of the Supervisor of Records (September 20, 2022). In my September 20th determination, I closed SPR22/2051 in light of the City’s intent to provide a supplemental response. Subsequently, the City responded on October 4, 2022. Unsatisfied with the City’s response, Mr. Huynh further appealed, and this case was opened as a result. While this appeal was pending, the City provided a supplemental response on November 1, 2022. 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 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. SPR22/2383 Page 2 November 3, 2022 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 Responses In its August 10, October 4, and November 1, 2022 responses, the City provides numerous responsive records, and cites G. L. c. 38, §§ 2 and 4, and Exemption (f) of the Public Records Law for withholding other records. See G. L. c. 4, § 7(26)(f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 38, § 2 In its response, the City cites G. L. c. 38, § 2, which provides in pertinent part: The chief medical examiner, with approval of the secretary of the executive office

Stephen G. Roche, Esq. SPR22/2383 Page 3 November 3, 2022 of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. G. L. c. 38, § 2. In its October 4th response and November 1st letter, the City indicates that it is withholding “medical examiner records ... involving a homicide” under G. L. c. 38, § 2. Where these are the types of records contemplated under the statute cited above, I find that the City may properly withhold responsive medical examiner records under Exemption (a) and G. L. c. 38, § 2. G. L. c. 38, § 4 In its October 4th response, and its November 1st letter, the City also cites G. L. c. 38, § 4, and states that “Massachusetts General Laws Chapter 38, Section 4 provides that the District Attorney ‘shall direct and control the investigation’ of any death.” Under this statute, the City argues that “the Springfield Police Department does not control access to homicide records. The Hampden County District Attorney controls access to any information about a case involving a death.” The City includes with its response a February letter from the Hampden District Attorney’s Office stating that “[a]ny information about a case involving a death (including facts about the incident or victim identification) should only be released by the Hampden County District Attorney’s Office.” Based on the City’s response, it is unclear how the cited statute permits it to withhold the records from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, it is unclear how G. L. c. 38, § 4 specifically or by necessary implication permits the City to withhold the requested records from disclosure. 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

Stephen G. Roche, Esq. SPR22/2383 Page 4 November 3, 2022 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. 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 responses, the City states that it “believes that the release of these records would reveal investigative techniques and erode the Springfield Police Department’s investigative process.” The City goes on to assert that “the Captain of the Springfield Police Department Detective Bureau has stated unequivocally that the release of these records would likely compromise the Detective Bureau’s investigations, especially homicide cases.” While the City claims it has withheld records under Exemption (f), it has not demonstrated how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required under the exemption. The City must clarify this. Additionally, although the City has provided some records, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under Exemption (f). See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the City is ordered to provide Mr. Huynh 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

Stephen G. Roche, Esq. SPR22/2383 Page 5 November 3, 2022 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Nhut Huynh