Rosemary Scapicchio, Esq. v. Easton, Town of - Police Department (SPR 20230983)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2023 SPR23/0983 Chief Keith Boone Easton Police Department 46 Lothrop Street North Easton, MA 02356 Dear Chief Boone: I have received the petition of Attorney Rosemary C. Scapicchio appealing the response of the Easton 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 20, 2023, Attorney Scapicchio requested the following records regarding an identified individual for a specified incident: [1] Body camera footage from all officers present at any time during the incident on February 5, 2023[;] [2] All 911 turret tapes[;] [3] All communications between [named individual] and the Easton Police Department[;] [4] All photos taken during the incident[;] [5] All police reports related to the incident[;] [6] All video of this incident seized or reviewed[;] [7] All crime reconstructions, evidence, and reports[;] [8] The autopsy report, toxicology report and complete medical examiner file[;] [9] The CAD sheets[;] [10] Any and all calls for assistance from [specified address], in the last five years[;] [11] The name of any company hired and/or paid to clean up the scene at [a specified address]. Prior Appeal This request was the subject of a previous appeal. See SPR23/0696 Determination of the Supervisor of Records (April 24, 2023). In my previous determination, I found that the Department had not met its burden to withhold information under Exemption (f). The Department provided a response on May 8, 2023. Unsatisfied with the response, Attorney Scapicchio petitioned this office and this appeal, SPR23/0983, was opened as a result. 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

Chief Keith Boone SPR23/0983 Page 2 May 24, 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, § l0A(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. 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 8th Response In its May 8, 2023 response, the Department states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law. 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

Chief Keith Boone SPR23/0983 Page 3 May 24, 2023 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the Department states, “…the [Bristol County District Attorney's Office] informed us that, because the investigation is active and incomplete, releasing any portion of the responsive records would undermine its investigation if disclosed. As such, the Department will continue to withhold said records under Exemption (f) in accordance with the District Attorney's Office's instructions.” 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 additionally 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 provide any supporting information to demonstrate how disclosure 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. Further, I find the Department did not identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Attorney Scapicchio with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Rosemary Scapicchio, Esq. Alexander Castro, Esq.