Timothy Martin v. Boston, City of - Police Department (SPR 20241143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1143 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Timothy Martin, of WFXT/Boston 25 News, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Mr. Martin requested, “... any body camera video from an incident that took place on 3/18/24 around 9:30 p.m. on Esmond St, where a suspect fired at and struck a Boston Police Officer.” The City responded on March 8, 2024. Unsatisfied with the response, Mr. Martin petitioned this office and this appeal, SPR24/1143, 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 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Shawn A. Williams, Esq. SPR24/1143 Page 2 May 1, 2024 custodian must provide the responsive records. The City’s March 8th response In its March 8, 2024 response, the City cited Exemption (f) of the Public Records Law to withhold the requested record in its entirety. 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 City asserted that that “[t]he release of body worn camera video relating to the officer that was shot on Esmond Street on 3/18/2024, at this time, would be harmful to an open investigation we are currently conducting. As such, this request is denied at this time under the investigatory exemption to the public records law. G. L. c. 4, § 7 (26) (f).” Although the City 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 unclear from the City’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not 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 City must clarify these matters.

Shawn A. Williams, Esq. SPR24/1143 Page 3 May 1, 2024 Conclusion Accordingly, the City is ordered to provide Mr. Martin with a response 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. Martin may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Timothy Martin