William Marshall v. Edgartown, Town of - Police Department (SPR 20231885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2023 SPR23/1885 James Hagerty Town Administrator Town of Edgartown 72 Peases Point Way S Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of William Marshall appealing the response of the Town of Edgartown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2023, Mr. Marshall requested, “[a]ll audio/visual recordings (including dispatch calls, police and EMS communications, body-worn and dashcam footage), electronic messages, incident reports, witness statements, investigative reports, medical records and reports, and all other records related to the death of [a named individual] on July 23-24, 2023 in the Edgartown Great Pond.” Prior Appeal This request was the subject of a prior appeal. See SPR23/1738 Determination of the Supervisor of Records (August 8, 2023). In my August 8th determination, I found that it was unclear if the Town possessed any records responsive to the request. The Town provided a response on August 14, 2023. Unsatisfied with the response, Mr. Marshall petitioned this office and this appeal, SPR23/1885, 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, § 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). 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

William Hagerty SPR23/1885 Page 2 August 28, 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. 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 Town’s August 14th Response In its August 14, 2023 response, the Town cited Exemption (f) of the Public Records Law to withhold the responsive records. Current appeal In his appeal, Mr. Marshall states, “given that the death of . . . has been determined to be accidental, according to public reports… there would not appear to be any grounds for withholding the records based upon a pending investigation claim.” 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 289-290.

William Hagerty SPR23/1885 Page 3 August 28, 2023 Under Exemption (f), the Town states, “per the MA State Police, we had initially been directed to send all media requests relating to the 23/July/23 drowning to them. Now, as we have received requests for specific EPD documents, I have been advised by the MSP that this is still a pending investigation for them and that they are not releasing any of their own documents. As our reports involve the same investigation, I wish to invoke the same exemption (‘F’).” Based on the Town’s response, it is unclear what type of records it possesses that it withheld from disclosure. 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 . . .”). Therefore, the Town must identify the type of records it has in its possession that it is withholding under Exemption (f). Further, the Town’s August 14th response did not provide supporting information on how the investigative process is ongoing. It is additionally uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Conclusion Accordingly, the Town is ordered to provide Mr. Marshall 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: William Marshall