David Nathanson v. Cambridge, City of - Office of the City Clerk (SPR 20230707)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2023 SPR23/0707 Seah Levy Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of David Nathanson, Esq., of Wood & Nathanson, LLP, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 7, 2023, Attorney Nathanson requested “copies of any police log, computer aided dispatch (CAD) sheets, police reports, dispatch records, or other documents relating to [an identified location] . . .” Previous Appeal This request was the subject of a previous appeal. See SPR23/0529 Determination of the Supervisor of Records (March 30, 2023). In my March 30th determination, I closed the appeal when I learned the City intended to provide a further response. On March 31, 2023, the City responded, indicating that it was withholding the records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the City’s response, Attorney Nathanson petitioned this office and this appeal, SPR23/0707, 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). 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

Seah Levy SPR23/0707 Page 2 April 25, 2023 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s March 31st Response In its March 31, 2023 response, the City cites 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, 371 Mass at 62. 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or

Seah Levy SPR23/0707 Page 3 April 25, 2023 indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438. In its response, the City asserts: [T]he records responsive to the Request contain information related to an ongoing investigation being conducted by the Department. The disclosure of such information would negatively affect that ongoing investigation as well as future investigations conducted by the Department, as it could discourage the individuals involved from speaking candidly to Department investigators…. The disclosure of involved individuals’ identities could also discourage them from cooperating with the investigation altogether, prejudicing the investigative process and harming public safety. The City seeks to protect members of the public who provide information to the Department and encourages all citizens who come forward and speak freely and candidly when communicating with law enforcement. If a member of the public knew that his/her/their identity would be subject to public disclosure if they provide information to the Department, that person may be discouraged from providing such information….This conclusion is supported by the fact that the Request not only seeks information “relating to [an identified location] but also explicitly seeks the identities of non-juvenile individuals involved in the matter referenced in the Request…. It is also important that, if any when Department investigators speak with involved individuals, their recollections about that matter not be clouded, tainted, or otherwise unduly influenced. Public release of records relating to an ongoing investigation could unduly influence or affect such individuals’ understanding of the matter… In a supplemental response dated April 14, 2023, the City reiterated its positions provided in its March 31st response. Although the City claims that disclosure would prejudice the possibility of effective law enforcement, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is not clear why the City cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. 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).

Seah Levy SPR23/0707 Page 4 April 25, 2023 Conclusion Accordingly, the City is ordered to provide Attorney Nathanson 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. Attorney Nathanson may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Nathanson, Esq.