Blue POV v. Salem, City of - Police Department (SPR 20240070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2024 SPR24/0070 Ann Marie Greene Salem Police Department Support Services – Records Division 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Blue POV appealing the response of the Salem 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 December 29, 2023, the requestor sought “[a]ll bodycam footage of the arresting officer of [an identified person] on 10/07/2022 for MARKED LANES VIOLATION, LICENSE SUSPENDED FOR OUI, OUI WHILE, OUI-LIQUOR OR .08%, 5TH OFFENSE, and ALCOHOL IN MV, POSSESS[ION] [OF] OPEN CONTAINOR … Incident Number 2200028477.” On January 8, 2024, the Department provided a response, denying access to the records pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the response, the requestor petitioned the Supervisor of Records and this appeal was opened. 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 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

Ann Marie Greene SPR24/0070 Page 2 January 23, 2024 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 custodian must provide the responsive records. The Department’s January 8th response In its January 8, 2024 response, the Department states the following: … as this is a pending investigation and active case in the courts (CFS#22-31387) and per G. L. c. 4, sec. 7, cl 26(f) (investigation exemption) Mass Public Records Law, due to the nature of the record or information the disclosure of which could compromise investigative efforts if disclosed, [w]e will not be releasing the following requested (BWC/Body Worn Camera) videos per this exemption noted under the Mass Public Records Law at this time. This information can and will be released to the court directly or any other requesting agency privy under [the] Mass Public Records Law if needed for any proceedings you are requesting the respective information for or per directive of the Court and or District Attorney’s Office. Current Appeal In the appeal petition, the requestor contends, “…[t]his case is over 1 year old, and seemingly the investigation is over as the charges have been filed. Also the [D]epartment failed to articulate their reasoning as to how the release would affect the outcome of the 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

Ann Marie Greene SPR24/0070 Page 3 January 23, 2024 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  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. Where an investigation remains open, the courts will look to the effect disclosure of the investigatory materials will have on the ability of law enforcement to effectively prosecute a case. 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. It is my understanding that the Department intends on providing a further response regarding its Exemption (f) claim. Conclusion Accordingly, the Department is ordered to provide the requestor with said response, 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.

Ann Marie Greene SPR24/0070 Page 4 January 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Blue POV