Paul Budge v. Swampscott, Town of - Police Department (SPR 20242242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2024 SPR24/2242 Administrative Lieutenant Michael J. Frayler Swampscott Police Department 531 Humphrey Street Swampscott, MA 01970 Dear Administrative Lieutenant Frayler: I have received the petition of Paul Budge, Esq., of Altman Nussbaum Shunnarah, appealing the response of the Swampscott 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 November 8, 2023, Attorney Budge requested, “... a copy of the Swampscott Police Department Police Report for this loss” which involves “a motor vehicle accident on October 31, 2023.” The Department responded on November 13, 2023 and provided the requested report with redactions. On August 5, 2024, Attorney Budge requested an unredacted report. The Department responded on August 5, 2024. Unsatisfied with the Department’s response, Attorney Budge petitioned this office and this appeal, SPR24/2242, 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). 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 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

Administrative Lieutenant Michael J. Frayler SPR24/2242 Page 2 August 21, 2024 custodian must provide the responsive records. The Department’s August 5th Response In its August 5, 2024 response, the Department cited Exemption (f) of the Public Records Law in support of the redactions to the responsive record. 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 its response, the Department stated, “[t]he Department is in possession of the report you requested, however, under M. G. L. c. 4, s. 7(26)(f) material pertaining to an on-going investigations or prosecutions, it cannot be released.” Although the Department claims it has an ongoing investigation regarding the requested record, it is unclear from the Department’s response whether the record contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of the record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). 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). The Department must clarify.

Administrative Lieutenant Michael J. Frayler SPR24/2242 Page 3 August 21, 2024 Conclusion Accordingly, the Department is ordered to provide Attorney Budge 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. Attorney Budge may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul Budge, Esq.