Edythe Ellin v. Springfield, City of - Police Department (SPR 20232004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2023 SPR23/2004 Jeremy Saint Laurent, Esq. First Associate City Solicitor & Records Access Officer City of Springfield Law Department 36 Court Street Springfield, MA 01103 Dear Attorney Saint Laurent: I have received the petition of Edythe Ellin, Esq., of Edythe Cherkas Ellin Attorney-at- Law appealing the response of the Springfield 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 July 27, 2023, Attorney Ellin requested “[v]ideo cam and any officer report for incident yesterday involving [an identified minor] at [an identified real property address and pertaining to an identified staff member].” Responses and Communications Between the Parties On July 27th, the City’s 3rd Associate City Solicitor, Justin P. Goldberg, Esq. provided a response indicating: [s]ince your request seeks body-worn camera video footage in possession of the [Department], the [Department] requires additional information in order to respond to your request. Due to the nature of body-worn camera videos, there may be several videos that are responsive to your request as officer may have responded to the underlying call for service/incident associated with your request. As a requester, you are entitled to the entirety of any body-worn camera footage that is deemed to be a public record. All body-worn camera footage must be reviewed for audio and video redactions prior to release. As a courtesy, the [Department] offers requesters the option to remove duplicate and excess camera footage when preparing body-worn camera video for release in effort to reduce fees (to yourself) that will be incurred during the redaction and review process. Please let us know if you would like to receive the entirety of the redacted footage 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

Jeremy Saint Laurent, Esq. SPR23/2004 Page 2 September 7, 2023 or the reduced video file associated with your request within five (5) business days from 07/27/2023… Via email on July 27, 2023, Attorney Ellin responded to the Department, stating, “[p]lease provide me with the reduced video. I also need the officers’ report. Do I need to file separately for that?” Attorney Goldberg responded, “[t]hank you for the clarification. I will send over the request for reduced video to the Body [Worn] Camera Unit. The officer’s report has been requested of the [Department]. You do not need to file a separate request.” Via email to Attorney Ellin on July 27th, the Department denied Attorney Ellin’s request for both the police incident report and the body worn camera video in their entirety pursuant to Exemption (f) of the Public Records Law, due to an on-going investigation. As a result of the Department’s denial to produce the records, Attorney Ellin petitioned the Supervisor of Records, and this appeal was opened. In her petition, Attorney Ellin informed this office that the incident report and body worn camera video footage is necessary to prove extreme use of force on her client. In addition, Attorney Ellin asserts, “[my client] needs to be able to see this video to corroborate her account of their interaction…” Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Ellin’s purpose in making the request has no bearing on the public status of any existing responsive records. 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) (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

Jeremy Saint Laurent, Esq. SPR23/2004 Page 3 September 7, 2023 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. The Department’s July 27th Response In its July 27, 2023 response, the Department withheld in their entirety both the incident report and the body worn camera video of the incident pursuant to Exemption (f) of the Public Records Law, due to an on-going investigation. 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, 371 Mass at 62. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or

Jeremy Saint Laurent, Esq. SPR23/2004 Page 4 September 7, 2023  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. The Department is advised, a showing that the requested records are “investigatory materials” relating to an ongoing investigation is not enough; the Department must also demonstrate that disclosure of the records, even in a redacted format, would likely be so prejudicial to effective law enforcement that disclosure would not be in the public interest. Therefore, I find the Department has not met its burden of specificity to show that the records may be withheld in their entirety under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Attorney Ellin with a response to her request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Edythe Ellin, Esq. Stephen G. Roche, Esq.