Greta Jochem v. University of Massachusetts Amherst - Police Department (SPR 20241841)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1841 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts, Amherst 340 Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Greta Jochem appealing the response of the University of Massachusetts, Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2024, Ms. Jochem requested the following: [1.] All body camera footage dated May 7, 2024 from UMass Amherst police officers who were at or near a campus protest and/or encampment [2.] Communications, including emails and their attachments, between the University of Massachusetts Amherst administration and university police, Amherst Police, and/or State Police between May 5, 2024, and May 8, 2024[.] The University responded on June 17, 2024, indicating that it was withholding records responsive to Part 1 of the request, and seeking clarification regarding Part 2. Unsatisfied with the University’s response, Ms. Jochem petitioned this office, and this appeal, SPR24/1841, was opened as a result. While this appeal was pending, the University provided a supplemental response to this office on June 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). 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

Christine M. Wilda SPR24/1841 Page 2 July 8, 2024 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. 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. Current Appeal In her appeal petition, Ms. Jochem contends the following: The body camera footage is of a protest in which there were more than 100 people arrested and many more people present. Given that it was in a public place with many people present, many of them recording on their own phones, I do not see how disclosure would impact effective law enforcement in the future. I believe it is in the public interest to release these records. The University’s June 17th and June 28th Responses In its June 17, 2024 response, the University indicates that it is withholding responsive video footage pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). In a letter to this office on June 28, 2024, the University reiterates its claims under Exemption (f) for withholding the records. 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

Christine M. Wilda SPR24/1841 Page 3 July 8, 2024 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its June 17th response, under Exemption (f), the University argues the following: The disclosure of the requested records would prejudice an ongoing investigation. As such, the Department may permissibly withhold these responsive records from disclosure under exemption (f). As a result, such information must be redacted/ withheld under the law. . . . Specific to this exemption the department is still reviewing video recordings to investigate the actions of those arrested during the event and provide evidentiary support for the respective charges. Exemption (f) applies as the investigation clearly is still underway. Additionally, in its June 28th response, the University argues the following: The department is still reviewing video recordings to investigate the actions of 134 people arrested during the event and provide evidentiary support for the respective charges. The department has limited personnel resources and as such all police (arrest) reports are not entirely complete, as supplemental information is being compiled and added. Arraignments are completed and pre-trial conference dates are set between July 8th and July 17th. The department’s position is that our investigators have until that time to fully complete their work, including the comprehensive review of video. As the investigation clearly is still ongoing, the department maintains these records, including video, are currently exempt under exemption (f). . . . The department is conducting an on-going investigation and believes that the premature public disclosure of investigative records, in this case, video records, could influence the rendition of the events that took place, or allow a preview of

Christine M. Wilda SPR24/1841 Page 4 July 8, 2024 events which could assist the arrested or charged persons in creating a fictitious narrative of the events that aligns with the timeline of events under investigation. Based on the University’s June 17th and June 28th responses, although portions of the responsive video footage may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. The University must explain whether the video footage can be redacted so that segregable portions of the footage can be provided. See G. L. c. 66, § 10(a); 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 University is ordered to provide Ms. Jochem 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: Greta Jochem Ian Cyr, Deputy Chief of Police