Blue POV v. Salem, City of - Police Department (SPR 20240394)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2024 SPR24/0394 Ann Marie Greene Principal Clerk Support Services - Records Division Salem Police Department 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 January 23, 2024, the requestor sought “all body cam footage of the arresting officer for the arrest of [a named individual] arrested on 10/12/2022 for A&B ON A POLICE OFFICER, DESTRUCTION OF PROPERTY, RESIST ARREST and FALSE/SILENT 911 CALL. Incident Number 2200028983.” The Department responded on February 6, 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, the requestor appealed, and this case 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

Anne Marie Greene SPR24/0394 Page 2 February 22, 2024 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 February 6th Response In its February 6, 2024 response, the Department cites Exemption (f) of the Public Records Law for withholding responsive video footage. 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 289-90. In its February 6, 2024 response, under Exemption (f), the Department argues the following: The case [the requestor is] referring to (23-28983) is still active in the courts as of 2-6-24 (per the Commonwealth of Massachusetts Criminal Justice Information Services). [The Department] will not be releasing the requested information at this time due to final disposition not yet being rendered. Additionally, the Department indicates that three of four criminal cases involving the records remain ongoing, and provides the following docket numbers and status: 2236CR001685A - pending final disposition

Anne Marie Greene SPR24/0394 Page 3 February 22, 2024 2236CR001685C - pending final disposition 2236CR001685D - pending final disposition 2236CR001685B - DISM The Department further argues that it is attempting “to balance the public's right to know the information being requested and the accused's right to due process with respect to information requested regarding an active case,” and that release “could possibly prejudice or hinder the accused’s right to due process.” Based on the Department’s response, where the requested record is part of multiple ongoing investigations and prosecutions, I find the Department has met its burden to withhold the report, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigations or prosecutions could impact the applicability of Exemption (f) to this record. Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) -- (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Blue POV