J.C. Hyness v. Boston, City of - Police Department (SPR 20222584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2584; SPR22/2585 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square 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. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 11, 2022 and August 17, 2022, respectively, J.C. Hyness requested: [1] …the booking photo and reports associated with the arrest of [a named person and age]… of Salem…[.] [2] …the booking photo and reports associated with the arrest of [a named person and age]… of Dorchester…[.] The City responded on August 22, 2022 and August 23, 2022. Unsatisfied with the responses, J.C. Hyness petitioned this office and these appeals, SPR22/2584 and SPR22/2585, 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 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

Shawn A. Williams, Esq. SPR22/2584; SPR22/2585 Page 2 November 29, 2022 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. The City’s August responses In its August 22, 2022 and August 23, 2022 responses, the City cited Exemption (f) to withhold the requested 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 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. In its responses, the City stated, “[a]ttached is a redacted incident report. It is my understanding that release of an identifying photo at this time would be harmful to an open investigation and could alert persons of interest and it is an identification issue. As such, this request is denied at this time under the investigatory exemption to the public records law.” I find that the City did not meet its burden to withhold these records under Exemption (f). Although the City has stated there is an incident report and an identifying photo, it is unclear whether any additional records or reports exist. The City must clarify this issue. Further, although the City claims it has an open investigation regarding the requested records, it is unclear how the booking photo can be withheld under Exemption (f). The City did not provide supporting information to demonstrate how disclosure of the booking photo “would

Shawn A. Williams, Esq. SPR22/2584; SPR22/2585 Page 3 November 29, 2022 probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). 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). Conclusion Accordingly, the City is ordered to provide J.C. Hyness with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: J.C. Hyness