Eoin Higgins v. Boston, City of - Police Department (SPR 20241747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1747 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Eoin Higgins, appealing the response of the Boston 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 28, 2024, Mr. Higgins requested, “[a]ny and all bodycam video taken on the morning and afternoon of April 27 by officers in the Boston Police Department clearing the Northeastern University pro-Palestinian tent encampment.” The Department responded on May 31, 2024. Unsatisfied with the response, Mr. Higgins petitioned this office and this appeal, SPR24/1747, 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

Shawn A. Williams, Esq. SPR24/1747 Page 2 June 25, 2024 The Department’s May 31st Response In its May 31, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Higgins states, “[t]his information is a matter of public record—it’s a reason why we have officers wear body cameras in the first place.” 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 289-290. Under Exemption (f), the Department stated the following: The Department denies your request because the records are part of open Internal Affairs Department (IAD) investigations and criminal proceedings; disclosure will prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records would interfere with enforcement proceedings. The body-worn camera videos are part of the investigation of this incident. Disclosure would prejudice the possibility of effective law enforcement that such disclosure is not in the public interest. Disclosure would prejudice effective law enforcement because officers and other prospective witnesses have not been interviewed. Disclosure would disclose confidential investigative techniques, procedures, or sources of information. Disclosure could inhibit the

Shawn A. Williams, Esq. SPR24/1747 Page 3 June 25, 2024 investigatory process by discouraging potential witnesses from coming forward or influencing witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and allowing 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. The investigatory process will be hampered if prospective witnesses do not come forward. 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. The Department is denying your request to protect the integrity of the investigative process and information relating to confidential investigative techniques, procedures, and sources and to maintain the ability to foster cooperation with the public. These records are part of an ongoing investigation, and their disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested record is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts. A records custodian is obligated to provide segregable portions of records where possible… However, providing segregable portions of the requested records is impossible without revealing confidential investigative techniques, procedures, or sources of information. Withholding this record is necessary to prevent interference with enforcement proceedings. The disclosure would prejudice effective law enforcement and not be in the public interest… 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). Specifically, the Department must clarify whether all the officers are part of the Internal Affairs investigation. 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). Conclusion Accordingly, the Department is ordered to provide Mr. Higgins with a response to the request, provided 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 the response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR24/1747 Page 4 June 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Eoin Higgins