Mark Hourihan v. Berlin, Town of - Police Department (SPR 20241651)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1651 Eric Schartner Chief of Police Berlin Police Department 23 Linden Street Berlin, MA 01503 Dear Chief Schartner: I have received the petition of Mark Hourihan, of Live Boston News, appealing the response of the Berlin 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 April 29, 2024, Mr. Hourihan requested the following: [T]he body camera footage of the primary officer(s) who responded to the below incident.... The incident that was posted to [the Department’s] facebook on March 24, 2024 where [the] department responded to a, “motor vehicle crash with injuries at the intersection of Lancaster Rd and Randall Rd....” The Department responded on April 30, 2024, denying the request, and claiming that the responsive records are exempt from disclosure under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Hourihan appealed, and this case 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. 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

Chief Eric Schartner SPR24/1651 Page 2 June 17, 2024 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 Department’s April 30th Response In its April 30, 2024 response, the Department cites Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). 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 April 30th response, under Exemption (f), the Department argues that “the case is still pending in court and [the Department] cannot release the footage as of today (Exemption F).” Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials compiled out of public view. Further, although the Department indicates that the requested records are associated with a pending court case, it does not explain the subject of any pending investigation nor does it describe how the requested records are part of the

Chief Eric Schartner SPR24/1651 Page 3 June 17, 2024 investigation. Further, the Department did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Hourihan 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. Sincerely, Manza Arthur Supervisor of Records cc: Mark Hourihan