Chris Van Buskirk v. Boston, City of - Public Records (SPR 20230291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2023 SPR23/0291 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Chris Van Buskirk, of Mass Live, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 10, 2023, Mr. Van Buskirk requested “[a]ll body camera footage depicting an encounter with and subsequent arrest of…” two specified individuals on January 21, 2023. The City provided a response on February 12, 2023. Unsatisfied with the City’s response, Mr. Van Buskirk petitioned this office and SPR23/0291, 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. 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. 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. SPR23/0291 Page 2 February 28, 2023 The City’s February 12th Response In its February 12, 2023 response, the City cites Exemption (f) of the Public Records Law 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 response, the City stated the following: The prosecutors assigned to these cases stated that the release of Body Worn Camera/Video at this time would be harmful to the cases and prohibit them from fairly and thoroughly prosecuting the cases as well as potentially prejudice a juror/jury. As such, this request is denied at this time under the investigatory exemption to the public records law. You may file a new request at a later date to determine whether the conditions regarding the status of this matter have changed, and a new response will be provided at that time. Based on the City’s response, it is unclear how disclosure of the responsive records would compromise or negatively impact the ongoing investigation or prosecution, or “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (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

Shawn A. Williams, Esq. SPR23/0291 Page 3 February 28, 2023 blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Van Buskirk 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. Mr. Van Buskirk may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chris Van Buskrik