Steven Cote v. Canton, Town of - Police Department (SPR 20233074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2024 SPR23/3074 Helena Rafferty Deputy Chief Canton Police Department 1492 Washington Street Canton, MA 02021 Dear Deputy Chief Rafferty: I have received the petition of Steven Cote appealing the response of the Canton Police Department (Department) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On December 12, 2023, Mr. Cote requested “[e]mails and Text/phone records of” four named individuals. The Department responded on December 19, 2023. Unsatisfied with the response, Mr. Cote petitioned this office and this appeal, SPR23/3074, 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. Att’y 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. 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 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

Deputy Chief Helena Rafferty SPR23/3074 Page 2 January 3, 2024 custodian must provide the responsive records. The Department’s December 19th response In its December 19, 2023 response, the Department cited Exemption (f) of the Public Records Law to withhold records. Current Appeal In his appeal, Mr. Cote states, “I believe the response provided does not adequately address the unique circumstances of each request and instead offers a generalized explanation. As a concerned citizen, I firmly believe in transparency and accountability within our government agencies. I submitted public records requests to obtain information crucial for understanding matters of public interest. I understand that the CPD has the responsibility to disclose public records, unless they fall under specific exemptions. However, I am not satisfied by the response, which states that the requested records could compromise ongoing investigations without providing a case-by-case analysis.” 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. Under Exemption (f), the Department states, “[w]ith respect to your request, please be advised that under [Exemption (f)], those records are being withheld as there is an ongoing investigation.”

Deputy Chief Helena Rafferty SPR23/3074 Page 3 January 3, 2024 Although the Department claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide any supporting information to 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. Further, it is unclear what records the Department possesses that it withheld under Exemption (f). 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 Department must identify the type of record(s) it has in its possession that it withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Mr. Cote with a response to the request, provided 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. Mr. Cote may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Cote