Kristin Kotewicz v. Malden, City of - Police Department (SPR 20242323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2024 SPR24/2323 Stephanie M. Burke Records Access Officer Malden Police Department 800 Eastern Avenue Malden, MA 02148 Dear Ms. Burke: I have received the petition of Kristin Kotewicz appealing the response of the Malden 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 July 17, 2024, Ms. Kotewicz requested, “all BWC from the following incidents: as well as any accidental recordings associated with the residential section of ... Summer St, or the commercial section of the basement of the building at the same address…” In her records request, Ms. Kotewicz provided 17 specific incidents numbers. The Department responded to Ms. Kotewicz’s request on July 29, 2024. Unsatisfied with the Department’s response, Ms. Kotewicz appealed, and this case, SPR24/2323, 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(d)(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, including the specific exemption or exemptions upon which the withholding is based…”); 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 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

Stephanie M. Burke SPR24/2323 Page 2 August 30, 2024 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 custodian must provide the responsive records. The Department’s July 29th Response In its July 29, 2024 response, the Department states, “[w]ith respect to your request for accidental body-worn camera recordings, please be advised that a search of the department’s body-worn camera storage system returned no results for the location of ... Summer Street. With respect to your request for body-worn camera footage related to incidents labeled 1, 12, 13, 15, and 16, please be advised that no body-worn camera footage exists for these incidents. With respect to your request for body-worn camera footage related to incidents labeled 2 through 10, the department intends to withhold [using Exemption (f)]…” The Department further states it would provide number 14 without any redactions, but would provide numbers 11 and 17 with redactions under Exemptions (a), (c), and (o). Current Appeal In Ms. Kotewicz’s appeal, she states, “I appeal the Malden Police Department’s denial … Furthermore, I believe these FOIA refusals utilizing the ‘investigation exemption (f)’ and their criminal complaint to be the result of local Police retribution to both extensive FOIA requests and planned civil action/restitution for repeated criminal acts and misconduct that were already acquired by myself from previous body camera footage that remain in my personal care. Finally, the incident #17 in the request was not addressed at all with regards to its absence in the response.” Upon review of the appeal, it appears Ms. Kotewicz is not objecting to the Department’s claims under Exemption (a), (c), and (o). 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

Stephanie M. Burke SPR24/2323 Page 3 August 30, 2024 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 July 29th response, the Department states, “[t]he records requested contain footage that is evidence in a criminal case at Malden District Court that has not yet been adjudicated. We have consulted with the Middlesex District Attorney’s Office and believe that the release of the footage at this time may prematurely disclose the details of the case prior to trial. As a result, such information must be withheld under the law.” Although portions of the responsive video footage may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Specifically, it is unclear how the records, in their entirety, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). The Department must explain whether the videos can be redacted such that segregable portions of the footage can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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). Possession, Custody, or Control The Department is advised that 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). Further, 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). Based on the Department’s response, in conjunction with Ms. Kotewicz’s appeal, it is unclear whether the Department possesses additional records responsive to “incident #17” of Ms. Kotewicz’s request. If the Department does possess additional records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide a response to Ms. Kotewicz in a manner consistent with this order, the Public Records Law, and its Regulations within ten

Stephanie M. Burke SPR24/2323 Page 4 August 30, 2024 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: Kristin Kotewicz