Andrew Quemere v. Greenfield, City of - Police Department (SPR 20230693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2023 SPR23/0693 Robert H. Haigh Jr. Records Access Officer Chief of Police Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Chief Haigh: I have received the petition of Andrew Quemere appealing the response of the Greenfield 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 21, 2023, Mr. Quemere requested “all reports and videos related to use-of-force incidents involving [a specific officer].” Previous Appeal This request was the subject of a previous appeal. See SPR23/0580 Determination of the Supervisor of Records (April 7, 2023). In my April 7th determination, I closed SPR23/0580 in light of the Department’s April 6, 2023 supplemental response. Unsatisfied with the Department’s response, Mr. Quemere further appealed, and this case 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. Att’y 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 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

Robert H. Haigh Jr. SPR23/0693 Page 2 April 24, 2023 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 April 6th Response In its April 6, 2023 response, the Department identifies three reports. The Department cites Exemption (f) of the Public Records Law for withholding the reports, and states that the reports are the subjects of disputes in active litigation. See G. L. c. 4, § 7(26)(f). 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 289-90. Under Exemption (f) the Department states the following: [T]he additional information sought in [the] request are ... reports 22-108-IA (22- 327-AR – Docket 2241CR1515), 23-1-IA (23-2-AR – Docket 2341CR0007) and 23-2-IA (22-290-AR – Docket 2241CR1320), all of which are being denied at this time in accordance with Exemption F – The Investigatory Exemption of G.L. Chapter 4, §7(26)(f). These reports and supporting documentation are currently open criminal matters and are the subject of disputes in active litigation, administrative hearings or mediation. Although the Department states that the responsive reports are “open criminal matters,” the subjects of the open investigations or prosecutions are unclear, and it is further unclear how the responsive records relate to those investigations or prosecutions. Further, based on the

Robert H. Haigh Jr. SPR23/0693 Page 3 April 24, 2023 Department’s response, it is unclear how disclosure of the responsive records would compromise or negatively impact the ongoing investigations or prosecutions, 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).” The Department must clarify these matters. 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 blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain whether segregable portions of the records can be provided. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere