Mason Woolley v. Amherst, Town of - Police Department (SPR 20241914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1914 Joy Ann Jolie Records Access Officer Amherst Police Department Records Bureau 111 Main Street Amherst, MA 01002 Dear Ms. Jolie: I have received the petition of Mason Woolley appealing the response of the Amherst 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 May 14, 2024, Mr. Woolley requested “[a] copy of police report, video(if any) and any other documents associated with an alleged incident on 5/2/2024 of fireworks possession involving [an identified individual].” The Department provided a response on May 14, 2024. Unsatisfied with the response, Mr. Woolley petitioned this office and this appeal, SPR24/1914, 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

Joy Ann Jolie SPR24/1914 Page 2 July 18, 2024 The Department’s May 14th Response In its May 14, 2024 response, the Department stated in an email, “[p]er your request, please see the attachment. This case is open and active at this time and can not be disseminated.” The attachment contained one responsive record accompanying a copy of the Department’s “Public Records Request and Response” form, which the Department used to cite Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Current Appeal In his appeal, Mr. Woolley states, “[t]he town of Amherst responded with a partial fulfillment and an exemption citing F. . . . No cogent or clear reasoning has been provided for the exemption cited and the town is using it in a blanket manner to restrict public access to records inconsistent with the purpose/spirit of the public records release to ensure public access to 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 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 advises: These are records that are compiled out of the public view by the Amherst Police Department or other investigatory partners. The disclosure of these records or materials would probably so prejudice the possibility of effective law enforcement in the case at hand, or even into the future, would not be in the public interest.

Joy Ann Jolie SPR24/1914 Page 3 July 18, 2024 This exemption may include the identity of certain witnesses, including statements made to law enforcement. Burden of Specificity; Records in Existence; Possession, Custody, or Control Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how information responsive to Mr. Woolley’s request is exempt from disclosure under the Public Records Law. Upon review, it is unclear whether the Department is claiming Exemption (f) to redact information, if any, from the record it provided in its May 14, 2024 response. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact a requested record. G. L. c. 66, § 10(b)(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 is based…”). Consequently, I find the Department must identify the information, if any, it has redacted from the provided record and explain with specificity how the exemption applies to redact the record. G. L. c. 66, § 10(b). Additionally, it is unclear if the Department possesses additional records that may be responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Woolley 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: Mason Woolley