Cheryl Costa v. Plymouth, Town of - Police Department (SPR 20241527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1527 Sergeant Benjamin Dexter Sergeant of Records Plymouth Police Department 20 Long Pond Road Plymouth, MA 02360 Dear Sergeant Dexter: I have received the petition of Cheryl Costa appealing the response of the Plymouth 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 May 9, 2024, Ms. Costa requested, “[1] the 911 call made by [a named individual] and [2] . . . the victim affidavit.” The Department responded to Ms. Costa’s request on May 10, 2024. Unsatisfied with the Department’s response, Ms. Costa appealed, and this case, SPR24/1527, was opened as a result. While this appeal was pending, the Department provided a supplemental response on May 28, 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. G. L. c. 66, § 10(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Sergeant Benjamin Dexter SPR24/1527 Page 2 June 4, 2024 The Department’s May 10th and May 28th Responses In its May 10, and May 28, 2024 responses, the Department cites Exemption (f) of the Public Records Law for withholding records responsive to Item 1 of the request, and states it is not in possession of records responsive to Item 2 of the request. See G. L. c. 4, § 7(26)(f). Item 1 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In regards to Item 1 of the request, the Department states it “does not release information relating to ongoing criminal matters with the exception of police reports. As there is a reasonable

Sergeant Benjamin Dexter SPR24/1527 Page 3 June 4, 2024 likelihood the information [Ms. Costa is] seeking in the form of a call to police may possibly be used as evidence in a criminal proceeding, the phone call is being withheld pursuant to Exemption (f) of the Public Records Law. Exemption (f) exempts from the definition of public record information that may jeopardize an ongoing matter, such that it would not be in the public interest.” Additionally, in a letter to this office and Ms. Costa on May 28, 2024, the Department identified “two audio files approximately two minutes in combined length” which the Department claimed could not be released under Exemption (f). The Department argues that “[i]n the single call ... the alleged victim provides his name, address, and the nature of his complaint.” Further, the Department argues that the records “may potentially be used as an evidentiary exhibit in the aforementioned case while also revealing the identity, address, and exact nature of the alleged victim’s initial complaint…” The Department also cites 950 CMR 32.08(2)(b)(1), and refers to “an ongoing criminal proceeding in the Plymouth District Court,” contending these records are subject to a dispute in active litigation. Although the Department states that there is an ongoing investigation, it is unclear how the release of the records would compromise the ongoing investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). It is additionally uncertain why the Department cannot redact identifying information from the responsive records to preserve the anonymity of voluntary witnesses. 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 clarify these matters. Item 2 In regard to Item 2 of the request, in its May 10th response, the Department states it is not in possession of “any affidavits … relating to this case. The case does reference a restraining order out of the Hingham District Court, which may have an affidavit relating to that docket.” Further, the Department refers Ms. Costa to “the clerks’ office for a copy.” Possession, Custody, or Control The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, where the Department has confirmed that it is not in possession of records responsive to Item 2 of Ms. Costa’s request, and has advised her to contact the Hingham District Court for the records she is seeking, I find that Ms. Costa’s appeal related to this portion of the request is resolved.

Sergeant Benjamin Dexter SPR24/1527 Page 4 June 4, 2024 Conclusion Accordingly, the Department is ordered to provide a response to Ms. Costa 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Cheryl Costa