Christian A. Williams v. Boston, City of - Police Department (SPR 20241491)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2024 SPR24/1491 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Christian Williams, Esq., of the Harvard Law School, Criminal Justice Institute, 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 April 2, 2024, Attorney Williams requested, “…any and all body worn camera recorded by [an identified police officer] on Friday, march 22, 2024, between 3:00 – 5:00 PM.” On April 4, 2024, the City inquired from Attorney Williams, “[d]o you want footage of a particular incident or all body worn camera for that time for the officer? I believe they responded to more than one incident during that time frame.” Attorney Williams responded to the City, “…I am looking for the video related to Incident #242023354, around Mt. Pleasant Street and later Forest Street.” Previous Appeal The request was the subject of a previous appeal. See SPR24/1195 Determination of the Supervisor of Records (April 25, 2024). In my April 25th determination, I ordered the City to provide an estimated date as to when it intends to complete the search and provide the outstanding record. The City provided a response on May 16, 2024. Unsatisfied with the City’s May 16th response, Attorney Williams petitioned this office and this appeal, SPR24/1491, 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

Shawn A. Williams, Esq. SPR24/1491 Page 2 May 31, 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. See 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 May 16th response In its May 16, 2024 response, the City stated that the record was withheld pursuant to Exemption (f) of the Public Records Law. Current Appeal In his appeal, Attorney Williams stated, “[t]here is little factual basis for the government to boilerplate denial of these records. To allow the government to invoke exception enumerated pursuant to G. L. c.4, s.7 with little support would allow the government to totally circumvent the letter and the spirit 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).

Shawn A. Williams, Esq. SPR24/1491 Page 3 May 31, 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 289-290. Under Exemption (f), the City stated: The Department has located the record responsive to your request. However, the Department is denying your request pursuant to Exemption (f) because the record you are requesting is related to an ongoing open investigation and its release at this time will prejudice effective law enforcement. A records custodian may withhold records concerning investigatory materials necessarily compiled out of public view by law enforcement officials where the disclosure of such materials would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest…. … Disclosure of the requested record would alert potential suspects to the activities of investigative officials. Alerting potential suspects of these activities of law enforcement officials would have a detrimental impact on law enforcement. Disclosure of this record would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and the ability of the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult. The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. If citizens and prospective witnesses do not come forward, the investigatory process will be hampered. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement which is not in the public interest. Further, releasing this record at this time may influence potential witnesses thereby compromising the investigatory process.… [P]roviding segregable portions of the requested record is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding this

Shawn A. Williams, Esq. SPR24/1491 Page 4 May 31, 2024 record in its entirety is necessary to prevent alerting suspects to the confidential investigatory techniques of law enforcement officials. Based on the City’s response, I find that to the extent the City claims that disclosure would prejudice the ongoing investigation, the City has met its burden to withhold the requested record under Exemption (f) of the Public Records Law at this time. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Christian Williams, Esq.