Laura Crimaldi v. Boston, City of - Police Department (SPR 20230662)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0662 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 petition of Laura Crimaldi, of the Boston Globe, 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 March 17, 2023, Ms. Crimaldi requested the following records: [1] Any/all 911 calls regarding the shooting death of [a named person] on Jan. 29, 2023; [2] Any/all video collected by Boston police as part of the investigation into the fatal shooting of [a named person] on Jan. 29, 2023; [3] Cellphone images labeled GJ Ex 27, GJ Ex 28, GJ Ex 29, and GJ Ex 30 as listed on page 2 of Commonwealth Notice of Discovery 1 in SUCR2023-00082, Commonwealth v. . . . (document enclosed); [4] Video Montage Reference Guide from GJ Ex 53 as listed on page 3 of Commonwealth Notice of Discovery 1 in SUCR2023-00082, Commonwealth v. . . . (document enclosed); [5] Boston Police Department Firearms Analysis Unit Report dated Feb. 7, 2023 as listed on page 1 of Commonwealth Notice of Discovery 2 in 2307CR000329, Commonwealth v. . . . (document enclosed); [6] “. . . – Major Case Photographs as listed on page 2 of Commonwealth Notice of Discovery 2 in 2307CR000329, Commonwealth v. . . . (document enclosed); [7] Any/all statements of [a named person] . . . regarding the fatal shooting of [a named person] on Jan. 26, 2014; [8] Search warrant return and affidavit for search warrant executed by Boston Police Department . . . in Attleboro on May 20, 2014. (document enclosed); [9] Search warrant return and affidavit for search warrant executed by Boston Police Department . . . in Attleboro on May 6, 2014. 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. SPR23/0662 Page 2 April 20, 2023 The Department responded on March 21, 2023. Unsatisfied with the response, Ms. Crimaldi petitioned this office and this appeal, SPR23/0662, 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. The Department’s March 21st Response In its March 21, 2023 response, the Department cited Exemption (f) to withhold the requested records. Current appeal In her appeal, Ms. Crimaldi asserts, “I respectfully submit that the Department has failed to carry its burden of demonstrating that the Investigatory Exemption applies with respect to items 7, 8, and 9 of the Request.” 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

Shawn A. Williams, Esq. SPR23/0662 Page 3 April 20, 2023 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 Department asserted, “[t]he above-listed records you requested are, as of the date of this letter, investigatory materials that are associated with an active investigation by the Boston Police Department and Suffolk County District Attorney’s Office. These materials in their entirety are exempt from disclosure pursuant to, but not limited to, the investigative exemption to the public records law. See G.L. ch. 4, § 7(26)(f). . . . Specifically, disclosure of the requested materials related to the events this homicide investigation would harm the continuing investigative efforts by the BPD and SCDAO through the ongoing investigation and court proceedings. Accordingly, your request for records related to this homicide is denied.” Although the Department 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 uncertain from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department 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). It is also unclear if all the records are related to any pending litigation. The Department must clarify. Further, the Department has not identified which specific records it is withholding 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…”); 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). Conclusion Accordingly, the Department is ordered to provide Ms. Crimaldi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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.

Shawn A. Williams, Esq. SPR23/0662 Page 4 April 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Laura Crimaldi