Eoin Higgins v. Boston, City of - Public Records (SPR 20242056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2024 SPR24/2056 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 25, 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 Emerson College pro-Palestinian tent encampment.” Prior Appeal This request was the subject of a prior appeal. See SPR24/1750 Determination of the Supervisor of Records (June 25, 2024). In my June 25th determination, I found that it was unclear how the records, in their entirety, can be withheld under Exemption (f). The Department responded on July 18, 2024. Unsatisfied with the response, Mr. Higgins petitioned this office and this appeal, SPR24/2056, 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. 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. SPR24/2056 Page 2 August 1, 2024 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. The Department’s July 18th Response In its July 18, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. Subsequent to the opening of this appeal, on July 23, 2024, the Department sent an additional response and stated, “[t]he Department stands by its July 18th response to SPR24- 1750.” 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. In its July 18th response, 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

Shawn A. Williams, Esq. SPR24/2056 Page 3 August 1, 2024 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 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… In its order the Supervisor opined that it is unclear how the records in their entirety can be withheld under Exemption (f) and instructs the Department to clarify whether all the officers are part of Internal Affairs investigations… The Department recognizes that the statutory exemptions are narrowly construed; however, the fact that there are pending open investigations and criminal proceedings the release of the footage at this time would prejudice future law enforcement efforts. Withholding this record in its entirety is necessary at this time to prevent interference with enforcement proceedings. Disclosure at this time would prejudice effective law enforcement and is not in the public interest. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Department to withhold the responsive records, the Department must provide this

Shawn A. Williams, Esq. SPR24/2056 Page 4 August 1, 2024 office with an un-redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Eoin Higgins