Blue POV v. Greenfield, City of - Police Department (SPR 20240945)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0945; SPR24/0946 Jeff Bengtson, Esq. Court Administrator/Counsel Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Attorney Bengston: I have received the petition of Blue POV appealing the response of the Greenfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR24/0945 On February 13, 2024, Blue POV requested the following: All bodycam footage and rear seat cam (if your dept. has them) for the arrest of [a named individual] arrested on 12/16/2023 for assault and battery and disorderly conduct. At [a specified] Medical Center. SPR24/0946 On February 13, 2024, Blue POV also requested the following: All bodycam footage and rear seat cam (if your dept. has them) for the arrest of [a named individual] arrested on 12/09/2023 for disorderly conduct (subsequent offense) and assault with dangerous weapon. At [a specified business] on Chapman Street. The Department responded to both requests on February 13, 2024, denying the requests, and citing the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) and Exemption (f) for withholding the responsive records. Unsatisfied with the Department’s response, Blue POV appealed, and this case was opened as a result. 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

Jeff Bengtson, Esq. SPR24/0945; SPR24/0946 Page 2 April 10, 2024 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. The February 13th Response In its February 13, 2024 response, the Department indicates that it is withholding the records of the two arrests, and cites CORI, and Exemption (f) of the Public Records Law for withholding the responsive records. See G. L. c. 4, § 7(26)(a), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Jeff Bengtson, Esq. SPR24/0945; SPR24/0946 Page 3 April 10, 2024 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. 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).

Jeff Bengtson, Esq. SPR24/0945; SPR24/0946 Page 4 April 10, 2024 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 13th response, the Department argues the following: These are being withheld pursuant to exemption F and Cori. All video, reports, photos etc have been provided to the District Attorney’s office as evidence to assist in further prosecution of the alleged crimes involved. Releasing such records/video may not only prejudice the Commonwealths case but also the defense, especially in their ability to pick a fair and impartial jury. It is always a possibility that evidence, in this case audio/video/written reports etc. may ultimately be excluded from trial and not part of any public court proceedings. . . . All information recorded road side, transport, or during booking etc is relevant to the litigation as it directly shows the defendants actions, demeanor, clothing if applicable to identity, etc. The police department is not and legally cannot be a judge as to what information is or is not relevant to a criminal proceeding and in fact make every effort to include as much relevant information as possible.... [W]here the department is not the determining factor as to what is or is not relevant, or what will or will not affect a constitutionally valid prosecution, these records should not be released at all let alone in a redacted format. If it were to be redacted, it would need to be entirely, absent punctuation. These records may, at their discretion, be released by the clerk’s office or the District Attorney’s office. The clerk’s office, bound by their own rules and regulations is independent of the Police and the District Attorney. The District Attorney is in charge of the prosecution and can therefore determine if release of such information would jeopardize the prosecution of a criminal matter or interfere with a defendant’s rights under the US constitution and the Massachusetts declaration of independence. However, should the police department release such information, viewed as unfavorable to the defendant; this matter would be ripe for a motion to dismiss based on government misconduct. Further, by definition, any pending criminal case, could be viewed as a violation of CORI as it relates to a persons’ criminal charges, the disposition of which is yet to be determined.

Jeff Bengtson, Esq. SPR24/0945; SPR24/0946 Page 5 April 10, 2024 Based on the Department’s response, where the requested records are part of an ongoing investigation and prosecution, I find the Department has met its burden to withhold the responsive records, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation or prosecution could impact the applicability of Exemption (f) to these records. Where the records may be withheld pursuant to Exemption (f), I decline to address the Department’s claims relating to Exemption (a) and CORI. 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