Kari Cincotta v. Boston, City of - Police Department (SPR 20231674)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2023 SPR23/1674 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Kari Cincotta, Esq., of the Committee for Public Counsel Services, appealing the response of the Boston Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Attorney Cincotta requested: Any and all reports, memorandum, notes, records, or other documents related to any and all investigation from any CrimeStopper Tips, or other crime-solving tips (anonymous or otherwise), about the shooting of [a named individual] on May 7, 2009 at . . . Dudley Street. The Department provided a response on July 12, 2023, denying access to the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). As a result of the Department’s July 12th response, Attorney Cincotta petitioned the Supervisor of Records, and this appeal was opened. 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 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

Shawn A. Williams, Esq. SPR23/1674 Page 2 July 28, 2023 order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (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…”); 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). 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. Current appeal In her petition, Attorney Cincotta indicates, “[o]n June 20, 2023, I made an inquiry as to the status of my request. The [Department] responded on July 12, 2023, indicating they denied the request due to the investigatory exemption…I submit the investigatory exemption is not a blanket exemption to deny any request of a police investigation…” Further, Attorney Cincotta asserts, “…the concerns of the [Department] can be alleviated, as allowed by law, by appropriate redactions to preserve the anonymity of any witnesses…” The Department’s July 12th Response In the Department’s July 12, 2023 response, it denied Attorney Cincotta’s request in its entirety 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.

Shawn A. Williams, Esq. SPR23/1674 Page 3 July 28, 2023 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Burden of specificity in claiming exemptions; segregable portions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Further, a records custodian must identify the type(s) of records in its possession. To deny access to a record under the Public Records Law, a records access officer must identify the records, categories of records, or portions of the records it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). I find it is unclear what records exist and how they are exempt in their entirety under Exemption (f). For example, it is uncertain whether the investigation in question is still ongoing, nor how disclosure of any segregable portion of the records would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest, as required under (f). Consequently, I find that the Department did not meet its burden of specificity in claiming Exemption (f) to withhold the responsive records from disclosure. Conclusion Accordingly, the Department is ordered to provide Attorney Cincotta with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations

Shawn A. Williams, Esq. SPR23/1674 Page 4 July 28, 2023 within ten (10) 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. Attorney Cincotta may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kari Cincotta, Esq.