Mark Hourihan v. Lowell, City of - Police Department (SPR 20241653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1653 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Mark Hourihan, of Live Boston News, appealing the response of the Lowell 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 report, booking image and body camera footage from the primary/arresting officer(s) who responded to incident 2024-00005998 related to firearm charges on Moody Street and the arrest of 45-year-old [identified individual] on April 23, 2024. The Department responded on May 17, 2024. Unsatisfied with the response, Mr. Hourihan petitioned this office and this appeal, SPR24/1653, 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. 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. 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

Jackie Cook SPR24/1653 Page 2 June 17, 2024 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 May 17th Response In its May 17, 2024 response, the Department denied the request for the records pursuant to Exemption (f) of the Public Records Law. Subsequently, on June 13, 2024, the Department provided a supplemental response. 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 May 17th response, the Department stated that, “[t]his request is being denied in accordance with Exemption F the Investigatory exemption: Ongoing Investigations: Information that may alert suspects, or otherwise jeopardize an ongoing investigation, may be withheld.” In its June 13, 2024 response, the Department opined “... we have cited Exemption F, the Investigatory Exemption, as the basis for withholding the requested materials. The incident in question occurred on April 23, 2024 and has not . . . yet been resolved in the courts. Whereas the case has not yet been prosecuted, we believe releasing the materials at this time would be premature and may inadvertently prejudice the court process.” Although the Department claims it has an ongoing investigation and releasing the

Jackie Cook SPR24/1653 Page 3 June 17, 2024 materials at this time would be premature and may inadvertently prejudice the court process regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear 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 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). Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. 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); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (f). 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. Mr. Hourihan may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mark Hourihan