Jack Taylor v. Boston, City of - Police Department (SPR 20232268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2023 SPR23/2268 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Jack Taylor appealing the response of the Boston 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 September 10, 2023, Mr. Taylor requested the following records: … any and all body-worn camera footage from [injured Department officer incident] on 6/9/2023. This includes footage from the injured officer’s BWC and BWC footage from the officer that transported the injured to the hospital via police vehicle. This also includes footage of other units arriving on scene, locating and apprehending the suspect, and securing/clearing the scene. . . . On September 21, 2023, the Department provided Mr. Taylor with a response, denying his request in its entirety under Exemption (f) of the Public Records Law. The Department also claimed Mass. R. Crim. P. 5(d) regarding grand jury proceedings. As a result, Mr. Taylor petitioned this office and this appeal was opened. In his petition, Mr. Taylor indicates that he is appealing the Department’s withholding of any responsive records under Exemption (f), and that the Department did not identify the specific records it is withholding. In addition, Mr. Taylor objects to Department’s citation of Mass. R. Crim. P. 5(d) concerning grand jury matters. 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 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. SPR23/2268 Page 2 October 5, 2023 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 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 September 21st Response In its September 21, 2023 response, the Department asserts, “[s]pecifically, the records requested pertain to an open case and, as a result, denial of your request.” The Department cites Exemption (f) of the Public Records Law to withhold the records in their entirety. The Department also cites, the Massachusetts Rules of Criminal Procedure, Rule 5(d) (Mass. R. Crim. P. 5(d)) pertaining to records and materials used during the proceedings of the Grand Jury. 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

Shawn A. Williams, Esq. SPR23/2268 Page 3 October 5, 2023 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  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. Whether an investigation is ongoing and active bears some weight on whether the investigatory exemption will apply to withhold records in their entirety under Exemption (f). 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, based on the Department’s September 21st response, I find that the Department did not meet its burden of specificity to show that the records may be withheld in their entirety under Exemption (f). Grand Jury Process and Records Mass. R. Crim. P. 5(d) regarding the secrecy of the Grand Jury process and records regarding the Grand Jury process states: The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by

Shawn A. Williams, Esq. SPR23/2268 Page 4 October 5, 2023 the court. No obligation of secrecy may be imposed upon any person except in accordance with law. Mass. R. Crim. P. 5(d). The Department’s response also asserts, “[a]s this matter is open and therefore under investigation, there is also a possibility that it may be presented to, or currently before, a [G]rand [J]ury for consideration. Grand Jury proceedings are investigations utilized by law enforcement; therefore, it logically follows that such proceedings are covered by the investigatory exemption. … Furthermore, ‘[a] person performing an official function in relation to the [G]rand [J]ury may not disclose matters occurring before the [G]rand [J]ury except in the performance of his or her official duties or when specifically directed to do so by the court.’ Mass. R. Crim. P. 5(d). Therefore, both investigative and [G]rand [J]ury materials are exempt from the definition of public records, and ‘specifically or by necessary implication exempted from disclosure by statute.’ G. L. c. 4, § 7(26).” Based on the Department’s response, it is unclear why Mass. R. Crim. P. 5(d) permits it to withhold the body worn camera footages from disclosure. The Department must clarify this. Burden of Specificity in Claiming Exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the Department’s September 21st response, it is uncertain what type(s) of records were withheld from disclosure. 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). The Department must identify the records it has in its possession that it is withholding under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Taylor with a response to his request, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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.

Shawn A. Williams, Esq. SPR23/2268 Page 5 October 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jack Taylor