Mitchell Dean v. Weymouth, Town of - Police Department (SPR 20241875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1875 Erin Metcalf Police Captain Records Access Officer Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Captain Metcalf: I have received the petition of Mitchell Dean appealing the response of the Weymouth 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 June 17, 2024, Mr. Dean requested, “[a]ny and all reports related to an incident where a person reported a gun being pointed at them on June 16, 2024[.]” The Department responded to Mr. Dean’s request on June 20, 2024. Unsatisfied with the Department’s response, Mr. Dean appealed, and this case, SPR24/1875, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 9, 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). 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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 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

Captain Erin Metcalf SPR24/1875 Page 2 July 10, 2024 burden of establishing the applicability of an exemption). 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 June 20th Response In its June 20, 2024 response, the Department states, “the report is denied based on Exemption F which applies to records that are ‘investigatory materials necessarily complied [sic] 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.’” 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 an email to this office on July 9, 2024, the Department states, “[t]he incident is considered an open and active investigation stemming from an incident in which a party was threatened with a handgun. The case has currently been assigned to the Detective Unit and follow-ups have been and are being conducted. It is our opinion that releasing this report to Mr. Dean may adversely impact the open and ongoing investigation into the incident by divulging intimate details pertaining to the case prior to a potential suspect being developed or criminal charge being sought.”

Captain Erin Metcalf SPR24/1875 Page 3 July 10, 2024 Although portions of the responsive incident report may fall under Exemption (f), it is uncertain how the record can be withheld in its entirety. For example, it is unclear how information such as the date and time of the incident, or the name of the responding officer would prejudice an ongoing investigation or prosecution. The Department must explain whether segregable portions of the report can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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 a response to Mr. Dean 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. Sincerely, Manza Arthur Supervisor of Records cc: Mitchell Dean