Russell Williston v. Lancaster, Town of - Police Department (SPR 20240166)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2024 SPR24/0166 Kathleen Rocco Executive Assistant Lancaster Select Board 701 Main Street, Suite 1 Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russ Williston, appealing the response of the Lancaster 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 January 10, 2024, Mr. Williston requested a copy of a specific incident report. The Department provided a response on January 18, 2024. Unsatisfied with the Department’s response, Mr. Williston petitioned this office and this appeal, SPR24/0166, 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. 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. 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

Kathleen Rocco SPR24/0166 Page 2 January 31, 2024 The Department’s January 18th response In its January 18, 2024 response, the Department provided Mr. Williston with a redacted copy of the requested record. The Department cited Exemption (f) of the Public Records Law in support of its redactions. 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 states the following: Attached includes records responsive to your request, portions are exempt from disclosure under exemption (f), which applies to ‘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.’ The Secretary of the Commonwealth’s A Guide to the Massachusetts Public Records Law advises that ‘[t]he exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed.’ Here, the requested records involve open and ongoing criminal investigations that must be kept confidential at this time if the investigations are not to be jeopardized. Also, the requested records may contain information subject to other exemptions of the Public Records Law. Although the Department claims it has an open investigation regarding the requested

Kathleen Rocco SPR24/0166 Page 3 January 31, 2024 record, it is unclear 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 the redacted portions of the responsive record “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 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is additionally uncertain what specific portions were redacted from the records. G. L. c. 66, § 10(d)(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). Consequently, the Department did not meet its burden of specificity in claiming Exemption (f) to redact the responsive record. Conclusion Accordingly, the Department is ordered to provide Mr. Williston 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: Russ Williston