Paul Caruso v. Barnstable, Town of - Police Department (SPR 20240415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0415 Danielle Paradis Records Access Officer Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Paul Caruso appealing the response of the Barnstable 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. Caruso requested: [1.] …any logs from the police officers responding to a 911 request to my residence on 2/23/2023[;] [2.] ... any and all emails to and from [an identified officer] and myself between approximately 3/25/2023 and 7/18/2023 containing any and all embedded symbols or emojis [;] [3.] ...any email correspondence between [identified officers] during the period 2/23/2023 and 12/13/2023 regarding my case. The Department provided a response on January 24, 2024. Unsatisfied with the Department’s response, Mr. Caruso petitioned this office and this appeal, SPR24/0415, 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). 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

Danielle Paradis SPR24/0415 Page 2 February 23, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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 January 24th response In its January 24, 2024 response, the Department noted that it does not possess any documents responsive to the request for logs from the 911 call. The Department provided a series of emails responsive to the rest of the request. The Department redacted the name of a voluntary witness pursuant to Exemptions (c) and (f) of the Public Records Law. The Department also made redactions pursuant to Exemption (f) as the information related to an open investigation. Current Appeal In his appeal, Mr. Caruso stated, “…it was stated that no police logs (notes) were available, and no pictures of white monkeys, that appeared on several e-mails from [an identified officer] to me, were visible in the provided records provided.” 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. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Danielle Paradis SPR24/0415 Page 3 February 23, 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 289-90. 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. Bougas 371 Mass 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. In its response, the Department stated, “[p]lease be advised that the name of a voluntary witness has been redacted pursuant to exemption (c) and (f) of G.L. c. 4, sec 7(26). ... In its response, the Department also stated, “[a]n additional name has been redacted pursuant to exemption (f), as the information relates to an open matter.” Where the Department states that it redacted identifying information of a voluntary witness, I find the Department has met its burden to claim Exemption (f) in withholding the voluntary witness. Further, based upon a conversation between a Staff Attorney and the Department, I find that the Department may redact the additional name based upon an active and ongoing investigation and that disclosure of the name as a public record would prejudice law enforcement efforts with regards to that investigation. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). The Department’s January 24th response in redacting emojis did not contain the specificity required in a denial of access to public records. The Department must identify what records it has in its possession, custody or control that are responsive to Mr. Caruso’s request. As a result, I find that The Department did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b).

Danielle Paradis SPR24/0415 Page 4 February 23, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Caruso 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. Caruso 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: Paul Caruso