Hector Arriaga v. Springfield, City of (SPR 20230915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 18, 2023 SPR23/0915 Jeremy Saint Laurent, Esq. First Associate City Solicitor & Records Access Officer City of Springfield Law Department 36 Court Street Springfield, MA 01103 Dear Attorney Saint Laurent: I have received the petition of Hector Arriaga appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2023, Mr. Arriaga requested “a complete unredacted copy of all documents related to an incident that happened in springfield Mass in Main st. and the corner of arch st. on September 13th, 1992 in which [a named individual] Was Killed.” Previous Appeal This request was the subject of a previous appeal. See SPR23/0345 Determination of the Supervisor of Records (March 7, 2023). In my March 7th determination, I ordered the City to provide Mr. Arriaga with a written response to his request. In a letter dated March 3, 2023, the City responded, denying Mr. Arriaga’s request. Unsatisfied with the City’s response, Mr. Arriaga 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 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

Jeremy Saint Laurent, Esq. SPR23/0915 Page 2 May 18, 2023 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 3rd Response In its March 3, 2023 response, the City cites G. L. c. 38, § 2, operating through Exemption (a) of the Public Records Law, and Exemption (f) for withholding the responsive records. See G. L. c. 4, § 7(26)(a), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 38, § 2 In its response, the City cites G. L. c. 38, § 2, which provides in pertinent part: The chief medical examiner, with approval of the secretary of the executive office

Jeremy Saint Laurent, Esq. SPR23/0915 Page 3 May 18, 2023 of public safety, shall promulgate rules for the disclosure of autopsy reports, which shall not be deemed to be public records, to those who are legally entitled to receive them. G. L. c. 38, § 2. In its March 3rd response, the City states that “the records that [Mr. Arriaga is] seeking contain information from the Massachusetts Medical Examiner. Those reports ‘shall not be deemed to be public records’ ... Access to these records is limited to those who are legally entitled to receive them.” Where such reports are the types of records contemplated under the statute cited above, I find that the City may properly withhold responsive medical examiner reports under Exemption (a) and G. L. c. 38, § 2. 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 City argues the following: The City has determined that it must deny [Mr. Arriaga’s] request because it believes that the requested records are exempt from disclosure as public records pursuant to exemption (f). . . . The City believes that the release of these records would reveal investigative techniques and erode the SPD’s investigative process. The Massachusetts Supreme Court ruled in Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62

Jeremy Saint Laurent, Esq. SPR23/0915 Page 4 May 18, 2023 (1976) that confidential investigative techniques may be withheld indefinitely under MGL Chapter 4, Section 7(26)(f) if the release of such records “may be prejudicial to future law enforcement activities.” The Captain of the SPD Detective Bureau has stated unequivocally that would be the case if the requested records were released. This information could also be utilized at a later time to compromise future law enforcement activities related to the investigation and prevention of crime. The integrity of the investigative process is vital. Based on the City’s response, it is unclear how the responsive records reveal investigative techniques or how the records would be prejudicial to future law enforcement activities. It is additionally uncertain how the records can be withheld in their entirety. The City must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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). Additionally, it is unclear from the City’s response which specific records the City intends to withhold under Exemption (f). The City must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the City is ordered to provide Mr. Arriaga 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: Hector Arriaga