Mason Woolley v. Amherst, Town of - Police Department (SPR 20242297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2024 SPR24/2297 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].” Previous Appeal This request was the subject of a previous appeal. See SPR24/1914 Determination of the Supervisor of Records (July 18, 2024). In my July 18th determination, I ordered the Department to provide additional information regarding its claims under Exemption (f) of the Public Records Law. Specifically, I found that the Department must identify the information, if any, it redacted from the provided record and explain with specificity how the exemption applies to redact the record. I also noted that the Department must clarify if it possesses additional records responsive to the request. Subsequently, the Department responded on July 24, 2024. Unsatisfied with the Department’s response, Mr. Woolley petitioned this office and this appeal, SPR24/2297, 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, § 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 SPR24/2297 Page 2 August 28, 2024 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. The Department’s July 24th Response In its July 24, 2024 response, the Department states that it “has reviewed the case and additional records are being released, in redacted format, to Mr. Woolley. These include a copy of the complaint request, the probable cause statement, and the summons report. No video was obtained by the Amherst Police Department.” The Department further cites Exemption (f) of the Public Records Law in redacting a witness statement responsive to Mr. Woolley’s request. Current Appeal In his appeal, Mr. Woolley disputes the Department’s basis for redacting the responsive records and claims that the Department did not provide all responsive records to his request. In a telephone call between a Public Records Division staff member and a representative of the Department on August 26, 2024, the Department confirmed that all responsive records have been provided. Where the Department has confirmed that all responsive records have been provided, I find that Mr. Woolley’s appeal regarding this matter is resolved. 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.

Joy Ann Jolie SPR24/2297 Page 3 August 28, 2024 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department stated the following: Exemption (f) provides guidance in that personal identifying information is exempt from disclosure. The Public Records Law in [sic] in strong favor of disclosure as the presumption is that most governmental documents, or at least portions of them, are public records. The Amherst Police Department agrees with this position, but prior rulings have made it clear that protecting identifying information about complaining witnesses and complainants is necessary and expected as outlined in Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872. In Bougas, the Court ruled that the release of information identifying witnesses and complainants was improper as such a release would harm future attempts to collect information from the public concerning crimes. The Amherst Police Department would argue that Bougas, later cited in Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 859 (1995), was very clear that to encourage people to come to the police about matters of great importance could and would be jeopardized by a public release of their names, identities or other personal traits. This is probably most true in a case such as this where a witness was integral to the complaint application. The petitioner has indicated that he already knew the witness’s identification. The Amherst Police Department would further argue that the release of a statement provided by a witness where no criminal trial will be held is a violation of trust and would potentially put that witness in jeopardy: if not relative in this case, but perhaps in future criminal investigations. Once again citing Bougas, the Court stated in part “the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas further allows “a

Joy Ann Jolie SPR24/2297 Page 4 August 28, 2024 certain carefully defined class of documents” may be withheld in its entirety from public view. Absent an order from the Supervisor to release the names of complainant(s) and his/her statement they have been omitted from this record. Based on the Department’s response, I find the Department may properly claim Exemption (f) in withholding, from the records, the identities and any information that will directly or indirectly identify complainant(s) and/or voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Woolley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mason Woolley