Jack Taylor v. Boston, City of - Public Records (SPR 20231940)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1940 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Jack Taylor appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 27, 2023, Mr. Taylor requested the following records: [1.] Body-worn camera footage and vehicle camera footage related to the incident #232059489 (BPD-involved motor vehicle accident). This includes footage from before, during, and after the incident. The footage should not end immediately after the collision. [2.] Additionally, all department-generated documents related to the incident, including reports, CAD records, and motor vehicle damage assessments. The City provided a response on August 21, 2023. Unsatisfied with the City’s response, Mr. Taylor petitioned this office and this appeal, SPR23/1940, 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). 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. SPR23/1940 Page 2 September 5, 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. The City’s August 21st response In its August 21, 2023 response, the City cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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. 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. 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

Shawn A. Williams, Esq. SPR23/1940 Page 3 September 5, 2023 identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the City stated the following: The records relate to an open and ongoing investigation by the BPD, and will be withheld in their entirety at this time pursuant to [E]xemption (f) of the [P]ublic [R]ecords [L]aw. A purpose of Exemption (f) is to encourage members of the public to cooperate with investigative officials. Disclosure of the witness statements in this instance would be contrary to the stated goal of Exemption (f). Accordingly, the witness statements must be withheld entirely pursuant to Exemption (f) as it is likely that the identity of any witness is known by you. Responsive records pertaining to your request have been found in the possession of the Boston Police Department. After speaking with the video evidence unit who has been communicating with the detective handling the investigation, our office has been advised that releasing any of the responsive records will impede on the active investigation at this time. Although the City claims it has an open investigation, it is unclear from the City’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not demonstrate how disclosure of any segregable portion 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). Further, the City has not established why the report cannot be redacted to preserve the anonymity of voluntary witnesses. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Based on the City’s response, it is unclear what type of records it possesses that it is withholding from disclosure under Exemption (f). Please be advised, to deny access to 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); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify the categories of records it has in its possession that it is withholding under Exemption (f). As a result, I find that the City did not meet its burden of specificity in claiming Exemption (f) of the Public Records Law to withhold the responsive records from disclosure.

Shawn A. Williams, Esq. SPR23/1940 Page 4 September 5, 2023 Conclusion Accordingly, the City is ordered to provide Mr. Taylor with a response to his 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. Mr. Taylor may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jack Taylor