J.C. Hyness v. Boston, City of - Police Department (SPR 20222595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2595; SPR22/2596 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 September 25, 2022, J.C. Hyness requested: All associated records, reports, images of the damaged vehicle if possible, booking photos and BWC footage (from the officer shot at, the primary responding units and the primary arresting units) as it relates to the incident at [an identified address] [on September 25, 2022]. Regarding the September 25th request, the City provided an October 2, 2022 response claiming Exemption (f) to withhold records responsive to the request. On September 26, 2022, J.C. Hyness requested: …the primary/arresting officer(s) BWC footage as well as the booking photo(s), report(s) and other records associated with the arrest of [an identified person] of Dorchester posted [on the bpdnews.com website]. Regarding the September 26th request, the City provided an October 9th response claiming Exemption (f) to withhold records responsive to the request. Unsatisfied with the City’s October 2nd and October 9th responses, J.C. Hyness petitioned this office and these appeals, SPR22/2595 and SPR22/2596 were opened as a result. Please note, 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. SPR22/2595; SPR22/2596 Page 2 November 29, 2022 SPR22/2595 pertains to J.C. Hyness’ September 25th request, and SPR22/2596 pertains to J. C. Hyness’ September 26th request. 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. 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 October 2, 2022 and October 9, 2022 Responses In its October 2nd and October 9th responses, the City cited Exemption (f) to withhold the requested records due to an on-going investigation. 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

Shawn A. Williams, Esq. SPR22/2595; SPR22/2596 Page 3 November 29, 2022 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. In its October 2nd and October 9th response, the City asserted, “[t]he prosecutors assigned to this case and the SCDAO stated that the release of BWC at this time would be harmful to an open investigation they are currently conducting. As such, this request is denied at this time under the investigatory exemption to the public records law.” Based on the City’s responses, it is unclear what type of records it possesses that it withheld from disclosure. 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 intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the City must identify the type of records it has in its possession that it is withholding under Exemption (f) and pertaining to J.C. Hyness’ September 25, 2022 and September 26, 2022 requests. Further, although the City claims it has an open investigation regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear from the City’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not demonstrate how disclosure of any portion 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 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 requests, 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