J Guzman v. Lawrence, City of - Office of the City Clerk (SPR 20230936)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2023 SPR23/0936 Officer Mark Panagiotakos Keeper of the Records Lawrence Police Department 90 Lowell Street Lawrence, MA 01840 Dear Officer Panagiotakos: I have received the petition of J Guzman appealing the response of the Lawrence Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2023, J Guzman requested the following: [1.] Lawrence Police Department booking room video on 03-10-23 involving [a named officer]. [2.] Use of force and or supplemental report from [the named officer] for booking room incident 03-10-23 [3.] March Use of Force report from IA Lt. Rossi. [4.] Email and use of force attachment from Lt. Rossi to Acting Deputy McCarthy for March Use of force monthly report. [5.] Daily LPD detail for all 3 shifts for March 10, 2023. The Department responded on May 9, 2023, denying the request. Unsatisfied with the Department’s response, J Guzman appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response by email to J Guzman and this office on May 10, 2023. 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

Mark Panagiotakos SPR23/0936 Page 2 May 22, 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 Department’s May 9th and May 10th Responses In its May 9, and May 10, 2023 responses, the Department cites Exemption (f) of the Public Records Law for withholding responsive records. 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); Bougas, 371 Mass. at 62. Any information

Mark Panagiotakos SPR23/0936 Page 3 May 22, 2023 contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement 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 [or her] career.” Id. at 438. In its May 9th response, under Exemption (f), the Department argues that “the records ... requested pertain to an open criminal investigation and the release of this information is exempt from disclosure.” Additionally, the Department argues that “the release of this information would prejudice future law enforcement efforts and witness statements would create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness.” In it May 10th response, the Department further argues that “this incident is in the primary stages of an investigation involving a Captain at the Lawrence Police department and a detainee in the Lawrence Police booking Room. The investigation has been sent to an outside agency to be impartially investigated. Therefore, it is in the City of Lawrence’s opinion that the articles requested are part of this investigation and are protected from release.” Although portions of the responsive records may fall under Exemption (f), it is uncertain how all of the requested records can be withheld in their entirety. Specifically, it is unclear how items 3, 4, and 5 of the request would constitute “investigatory materials necessarily compiled out of the public view” or how such records would prejudice an ongoing investigation or prosecution. Additionally, the Department 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). Conclusion Accordingly, the Department is ordered to provide J Guzman 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: J Guzman