Bernadette L. Sabra v. Attleboro, City of - Police Department (SPR 20241062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2024 SPR24/1062 Lisa Towne Records Access Officer Attleboro Police Department 12 Union Street Attleboro, MA 02703 Dear Ms. Towne: I have received the petition of Bernadette L. Sabra, Esq., on behalf of Steven P. Sabra, Esq., both of Sabra Law Offices, appealing the response of the Attleboro 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 March 29, 2024, Attorney Steven P. Sabra requested, “…a copy of the crash report regarding a pedestrian/motor vehicle accident on or about March 2, 2024 on Pleasant Street in Attleboro, Massachusetts.” The Department provided a response on April 5, 2024. Unsatisfied with the Department’s response, Attorney Bernadette L. Sabra petitioned this office and this appeal, SPR24/1062, 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

Lisa Towne SPR24/1062 Page 2 April 24, 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. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Sabra’s status as counsel for the estate of a person named in the records will have no bearing on the public status of any existing responsive records. The Department’s April 5th Response In its April 5th response, the Department withheld the requested records, citing Exemption (f) of the Public Records Law. Current Appeal In the petition, Attorney Sabra stated, “[t]his appeal is based on the rejection of Attleboro’s claim that there are any investigatory materials contained in the requested records that would ‘prejudice’ the possibility of effective law enforcement…” 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, 371 Mass at 62. 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,

Lisa Towne SPR24/1062 Page 3 April 24, 2024 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 citing Exemption (f), the Department stated, “[t]he Department intends to withhold the above-referenced requested records [pursuant] to Exemption (f)…While this exemption is not a blanket exemption it applies to such information, the disclosure of which would prejudice investigative efforts. In particular, it applies to information related to ongoing investigations, and confidential investigative techniques.” In a telephone conversation between the Department and a Public Records Division staff attorney, the Department stated that the investigation is currently ongoing. The Department also stated that the District Attorney had not yet determined whether charges would be filed. However, the Department did not provide any supporting information to demonstrate how disclosure of the responsive records would “so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Additionally, it is unclear how the records can be withheld in their entirety. 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 explain whether segregable portions can be provided. Conclusion Accordingly, the Department is ordered to provide Attorney Sabra with a response to the 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. Attorney Sabra 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: Steven P. Sabra, Esq.