Timothy Martin v. Boston, City of - Police Department (SPR 20242305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2024 SPR24/2305 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Timothy Martin, of WFXT/Boston 25 News, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Mr. Martin requested, “... any body camera video from an incident that took place on 3/18/24 around 9:30 p.m. on Esmond St, where a suspect fired at and struck a Boston Police Officer.” Previous Appeal The request was the subject of a previous appeal. See SPR24/1143 Determination of the Supervisor of Records (May 1, 2024). In my May 1st determination, I found that it was unclear how the record, in its entirety, can be withheld under Exemption (f). The City responded on May 17, 2024. Unsatisfied with the City’s response, Mr. Martin petitioned this office and this appeal, SPR24/2305, 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 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. SPR24/2305 Page 2 August 29, 2024 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. 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 City’s May 17th response In its May17, 2024 response, the City advised, “[t]he Department has located records responsive to your request” and cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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 City asserted that “... the record you are requesting is related to an ongoing open investigation and its release at this time will prejudice effective law enforcement.” The City further advised, An essential part of the investigatory process includes a dialogue between police departments, individual citizens, and potential witnesses. Exemption (f) Contemplates that individual citizens should be encouraged to come forward and speak freely with police concerning matters under investigation, and the creation

Shawn A. Williams, Esq. SPR24/2305 Page 3 August 29, 2024 of initiative that police officers might be completely candid in recording their observation, hypotheses and interim conclusions. Id. The Department is denying your request because the records are part of an open investigation and disclosure will prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records would alert potential suspects to the activities of investigative officials. Alerting potential suspects of the activities of law enforcement officials would have a detrimental impact on law enforcement. Disclosure of this record would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and the ability of 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. If citizens and prospective witnesses do not come forward, the investigatory process will be hampered. 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 these records at this time may influence potential witnesses thereby compromising the investigatory process. To protect the integrity of the investigative process, information relating to confidential investigative techniques, procedures, and sources, and to maintain the ability to foster cooperation with the public, the Department is denying your request at this time. This record is part of an ongoing investigation and its disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested records is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts. Where the record(s) pertain to an open and ongoing investigation, and disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements, I find that the City may permissibly withhold the responsive record(s) from disclosure under Exemption (f) at this time. Please note that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will now consider this administrative appeal closed.

Shawn A. Williams, Esq. SPR24/2305 Page 4 August 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Timothy Martin