Cheryl Costa v. Rockland, Town of - Police Department (SPR 20241600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 11, 2024 SPR24/1600 Debra Newcomb Administrative Assistant Rockland Police Department 490 Market Street Rockland, MA 02370 Dear Ms. Newcomb: I have received the petition of Cheryl Costa appealing the response of the Rockland 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 4, 2024, Ms. Costa requested: [1] … the police report from [an identified individual]’s complaint that I violated my restraining order for throwing a bag at him during the child exchange on 5/2/24. He reported this to the [Department] on 5/3/24, 24 hours after the exchange occurred. [2] … the [video] footage of the parking lot of the Rockland Police Station, where I exchanged my son with [an identified individual] between 7:15PM to 7:30 PM, on 5/2/24…. The Department provided a response on May 9, 2024. Unsatisfied with the Department’s response, Ms. Costa petitioned this office and this appeal, SPR24/1600, 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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

Debra Newcomb SPR24/1600 Page 2 June 11, 2024 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. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Costa’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Department’s May 9th response In its May 9, 2024 response, the Department responded and cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In her appeal, Ms. Costa stated, “… complaint was made to the [Department] … [regarding alleged] restraining order violation. However, the [Department] called me on the evening of May 3 at 7:08 PM to explain there was no violation because they viewed the video footage of the parking lot…. I need a copy of this police report, and any victim affidavit made, as well as the video footage of the parking lot so I may represent myself accordingly at the … hearing in August.” 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).

Debra Newcomb SPR24/1600 Page 3 June 11, 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 Department stated, “… the [Department] intends to withhold/redact the… records due to the applicability of the following exemptions and the reasons set forth below. This is an open and ongoing investigation. Exemption (f)….” Although the Department claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally uncertain 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 provide any supporting information to 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, § 10(a). The Department must clarify these matters. Please be advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the records it has in its possession that it is withholding under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Ms. Costa 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. Ms. Costa may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Debra Newcomb SPR24/1600 Page 4 June 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Cheryl Costa