Brandon Stokes v. Cambridge, City of - Law Department (SPR 20241373)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2024 SPR24/1373 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Brandon Stokes, of 7NewsWHDH Boston, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2024, Mr. Stokes requested the following “records related to an incident at the Cambridge Rindge and Latin School at approximately 1:45 pm on 4/2/24 in which a resource officer accidentally discharged their gun in a staff bathroom”: [1] Surveillance video leading up to the gun going off, including the officer walking down the hallway and into the bathroom[;] [2] Surveillance video from school hallway(s) that capture audio of the gunshot[;] [3] Surveillance video from the hallway(s) outside the bathroom that show the response of other officers[;] [4] Any video or pictures of damage within the bathroom caused by the bullet, including any markings, holes, etc.[;] [5] Bodycam video from the officers who responded[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR24/1205 Determination of the Supervisor of Records (May 3, 2024). In my May 3rd determination, I learned that the City provided a further response to Mr. Stokes on April 30, 2024. Unsatisfied with the City’s response, Mr. Stokes petitioned this office and this appeal, SPR24/1373, 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 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

Seah Levy SPR24/1373 Page 2 May 20, 2024 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 City’s April 30th Response In its April 30, 2024 response, the City cited Exemption (f) of the Public Records Law to withhold the requested records regarding items 1-4. With regard to item 5, the City asserted “... that the City has no responsive records.” Current appeal In his appeal, Mr. Stokes asserts, “... the City does not explain with specificity how the release of the record(s) ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest’. The record(s) are important for transparency in showing how a public official carried out their duties, whether public safety was put at risk as a result of their actions, and how other public officials carried out their duties while responding to the incident. Where there is substantial public interest, the record(s) should be provided without further delay.” 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).

Seah Levy SPR24/1373 Page 3 May 20, 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 response, the City stated that “[t]he items sought are connected to an ongoing investigation regarding an uncommanded discharge at the Cambridge Rindge and Latin School. The City’s Public Records Access Officer confirmed that the investigation into this matter is ongoing. Where the investigation has not concluded and there have been no findings, releasing the requested material that is connected to the investigation at this stage is premature and could impact the City’s ability to carry out a thorough and reliable investigation. While the investigation remains ongoing, the potential prejudice of interference with the City’s ability to conduct its investigation dictates that disclosure of materials is not in the public interest. The City’s position is supported by Exemption (f) of the Public Records Law as well as the Peace Officer Standards and Training Commission’s practice in not releasing information related to ongoing investigations involving potential misconduct.” The City further asserted, ... due to the ongoing nature of the investigation, the disclosure of materials would “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” M.G.L. c. 4, § 7(26)(f). Disclosing investigatory materials before they have been fully and completely evaluated in coming to a conclusion of the investigation could negatively impact the investigation at this stage. The City’s position is consistent with the position of the Peace Officer Standards and Training Commission, which will not include ongoing investigations in its public facing database of complaints of police misconduct. Here, due to the severity of the allegations that are currently under investigation, the City appropriately denied the Request. Redacting the requested documents is not practical. Production of any of the requested documents/information will likely so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Given the possibility that a release of these records could prejudice the investigation and its results, the City’s denial of the requested documents is

Seah Levy SPR24/1373 Page 4 May 20, 2024 proper pursuant to Exemption (f). The Requestor’s appeal is without merit and should be denied in its entirety. Based on the City’s response, I find the City must confirm whether the investigation remains active and ongoing at this time. Conclusion Accordingly, the City is ordered to provide Mr. Stokes 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. Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes