Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20231913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 31, 2023 SPR23/1913 Alexandra Hayden Records Access Officer Chelmsford Police Department 2 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: I have received the petition of Stanley Mazurczyk appealing the response of the Chelmsford 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 January 2, 2023, Mr. Mazurczyk requested, “… copies of civilian complaints against Chelmsford police officers received, filed, and/or processed in 2022 in their native format. Make certain to include received but not filed and/or processed complaints as well.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/0107 Determination of the Supervisor of Records (February 2, 2023) and SPR23/0781 Determination of the Supervisor of Records (May 8, 2023). In my May 8th determination, it was my understanding that the Department intended to provide a further response to Mr. Mazurczyk. Subsequently, the Department provided a response on May 22, 2023. Unsatisfied with this response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/1913, 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 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

Alexandra Hayden SPR23/1913 Page 2 August 31, 2023 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. The Department’s May 22nd Response In its May 22, 2023 response, the Department cited Exemption (f) to redact certain information in the requested records. Current appeal In his appeal, Mr. Mazurczyk states, “[regarding] civilian complaints #1694. [1] Department redacted the date complainant had her land surveyed in 2022. It’s unclear if exemption (c) and/or (f) is applicable. I contend neither is. [2] It’s unclear if Department has record of who and when the conclusion for civilian complaint #1694 made in 2022 was made verbally to the complainant’s satisfaction.” Mr. Mazurczyk also asserts that regarding civilian complaints #1726. “[1] Department failed to provide Lieutenant ... report.” 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. As a matter of course, witness provided information is essential to efficient and effective

Alexandra Hayden SPR23/1913 Page 3 August 31, 2023 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. Bougas, 371 Mass 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 law enforcement agencies 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. In its response, the Department asserted, “[t]he information redacted is vital in protecting the identities of the complainant. These documents gave details pertaining to the person such as name, land survey date, and address and would allow the complainant to be identified. By redacting this information, I was able to provide you with as much information about the complaint as I am allowed to.” The Department further asserted the following: Also included in our previous response were the “conclusion notices”. One document was a redacted copy of a written conclusion for civilian complaint # 1726 made in 2022.... The information redacted is vital in protecting the identity of the complainant. This document gave intimate details pertaining to the complainant including their name. As previously stated, the conclusion for civilian complaint # 1694 made in 2022, was made verbally to the complainant’s satisfaction by our department, and we do not possess a physical copy of this conclusion. We did not possess the record at the time of your original request, nor do we currently possess documentation of this conclusion therefore it cannot be provided, as it was verbal. As Exemption (f) permits the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, where the individual(s) can be directly or indirectly identified even with redaction, I find that the Department has met its burden to withhold any identifying information of the complainant from disclosure. In a telephone conversation between the Department and an attorney of the Public Records Division, the Department advised that the civilian complaint for #1726 was provided to Mr. Mazurczyk and no request was made for the Lieutenant’s report. If Mr. Mazurczyk would like to obtain a copy of the Lieutenant’s report, he is advised that he should make a separate public records request to the Department’s Records Access Officer. see Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then

Alexandra Hayden SPR23/1913 Page 4 August 31, 2023 make a prompt production.”). No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, where the “. . . conclusion for civilian complaint # 1694 made in 2022, was made verbally to the complainant’s satisfaction. . .[,]” I find that this portion of the appeal is resolved. Upon review, I find that the Department has met its burden in responding to this records request. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk