Blue POV v. Salem, City of - Police Department (SPR 20240400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2024 SPR24/0400 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.” Prior Appeal This request was the subject of a prior appeal. See SPR24/0070 Determination of the Supervisor (January 23, 2024). In my January 23rd determination, it was my understanding that the Department intended to provide a further response. The Department provided a response on February 2, 2024. Unsatisfied with the response, the requestor petitioned the Supervisor of Records and this appeal, SPR24/0400, 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). 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 SPR24/0400 Page 2 February 21, 2024 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. The Department’s February 2nd response In its February 2, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold responsive records. Current Appeal In the appeal, the requestor states, “[the Department] claimed the case is still open and provided me with a docket number which I looked up on masscourts.gov and the case has been disposed of since October of 2023. The 5th offense OUI has been dropped to a lesser charge of 3rd offense and deemed responsible for 3 other charges and open was dismissed. Might I add that even if this case was still open they have failed this time and all the other times they claim exemption, to articulate how releasing BWC footage would somehow ‘prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.’” 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.

Ann Marie Greene SPR24/0400 Page 3 February 21, 2024 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department states, “this is still an active case per the Commonwealth of Massachusetts Department of Criminal Justice Services ‐ reference docket# 2236CR001673A (Salem District Court). The Department asserts, the premature public disclosure of investigative records, and, in this case, body worn camera video, and their general publication could influence the accused’s rendition of events and could be used to sway the investigator’s findings and recommendations. Generally speaking, accessing prematurely disclosed records could provide a pre‐view of events which could assist all involved parties in creating a fictitious narrative of events that aligns with the timeline of the events and facts of the case under investigation…” 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 additionally uncertain from the Department’s response whether the record 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 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, 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. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided 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

Ann Marie Greene SPR24/0400 Page 4 February 21, 2024 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: Blue POV