Charles Monroe v. Somerville, City of - Police Department (SPR 20232338)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2338 Betsy Mercado Records Clerk Somerville Police Department 220 Washington Street Somerville, MA 02143 Dear Ms. Mercado: I have received the petition of Charles Monroe, appealing the response of the Somerville 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 18, 2023, Mr. Monroe requested a specific police report. The Department provided a response on September 20, 2023, citing Exemption (f) of the Public Records Law for denying the request. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Monroe petitioned this office and SPR23/2338, 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 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. 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

Betsy Mercado SPR23/2338 Page 2 October 16, 2023 The Department’s September 20th response In its September 20, 2023 response, the Department cited Exemption (f) of the Public Records Law to withhold the police report. See G. L. c. 4, § 7(26)(f). 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. Citing Exemption (f), the Department argues the following: This incident is currently under investigation by Somerville Police Department. Your request is denied under exemption (f) of the Massachusetts Public Records Law. Under this exemption, the record(s) constitutes investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials, the disclosure of which materials would potentially so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. 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 further unclear from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Additionally, 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

Betsy Mercado SPR23/2338 Page 3 October 16, 2023 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 police report from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Monroe 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. Sincerely, Manza Arthur Supervisor of Records cc: Charles Monroe