James O'Donnell v. Dighton, Town of -- Police Department (SPR 20231994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2023 SPR23/1994 George Nichols Acting Chief of Police Dighton Police Department 1458 Somerset Avenue Dighton, MA 02715 Dear Acting Chief Nichols: I have received the petition of James O’Donnell, of WGBH, appealing the response of the Dighton 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 June 30, 2023, Mr. O’Donnell requested the following records: [1.] Incident reports and/or police reports related to incidents that occurred on March 27, 2018 and took place at Dighton-Rehoboth High School….[;] [2.] Recordings and/or transcripts of 911 calls placed from Dighton-Rehoboth High School…on March 27, 2018. The Department provided a response on August 21, 2023. Unsatisfied with the Department’s response, Mr. O’Donnell petitioned this office and SPR23/1994, 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 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 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

George Nichols SPR23/1994 Page 2 September 7, 2023 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 August 21st response In its August 21, 2023 response, the Department provided the requester with call logs but cited Exemption (f) of the Public Records Law to withhold the incident report. Further, the Department advised that there was “no 911 calls from the Dighton-Rehoboth High School on March 27, 2018.” Current appeal In his appeal, Mr. O’Donnell states, “[t]he subject of the incident report ... is not under investigation by the Dighton Police Department or any state authority in Massachusetts. While [an identified individual] has been charged with other crimes in federal court, the incident report of police responding to his threats against his school is not part of that investigation, so their withholding under Exemption F is improper.” 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. In its response, the Department stated the following:

George Nichols SPR23/1994 Page 3 September 7, 2023 Enclosed, herewith as per your public record request. Please be advised that the incident report requested for March 27, 2018 was denied by the Dighton Police Department due to the applicability of the following exemption (ongoing investigation G. L. c. 4, § 7 (26)(f)). Although the Department claims it has an open investigation regarding the requested record, it is unclear how the record in its entirety can be withheld under Exemption (f). It is unclear from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any portion of the responsive record “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 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Consequently, the Department did not meet its burden of specificity in claiming Exemption (f) to withhold the incident report from disclosure under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Mr. O’Donnell 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. O’Donnell may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: James O’Donnell