Live Boston v. Acton, Town of - Police Department (SPR 20241072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2024 SPR24/1072 Rebecca LeBlanc Records Clerk Acton Police Department 371 Main Street Acton, MA 01720 Dear Ms. LeBlanc: I have received the petition of LiveBoston (“requestor”) appealing the response of the Acton 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 April 9, 2024, the requestor sought, “... the BWC footage of the primary officers who responded on March 6, 2024 to the Avalon Drive homes in an apparent ‘swatting’ incident.” The Department responded on April 10, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/1072, 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. If there are any fees associated with a response a written, good faith estimate must be 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

Rebecca LeBlanc SPR24/1072 Page 2 April 23, 2024 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 April 10th Response In its April 10, 2024 response, the Department denied the request for the records pursuant to Exemption (f) of the Public Records Law. 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 response, the Department asserted that, “[t]he body-worn camera footage of incident 2024-305-of is not releasable, at this time, under exemption F materials pertaining to ongoing investigations or prosecutions (G.L. c. 4, § 7(26)(f)) pending criminal charges involving a juvenile.” Although the Department claims it has an ongoing investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any segregable portion of the responsive records “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, §

Rebecca LeBlanc SPR24/1072 Page 3 April 23, 2024 10(a). 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 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. The requestor may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: LiveBoston