Mark Hourihan v. Fall River, City of - Police Department (SPR 20242500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2024 SPR24/2500 Detective Sergeant Moses Pereira Office of Professional Standards Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Detective Sergeant Pereira: I have received the petition of Mark Hourihan, of Live Boston, appealing the response of the Fall River 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 9, 2024, Mr. Hourihan requested “the body worn camera footage of the primary and/or arresting officers’ as it relates to the arrest of [a named individual] in January of this year.” Previous Appeals This request was the subject of previous appeals. See SPR24/1080 Determination of the Supervisor of Records (April 26, 2024) and SPR24/1917 Determination of the Supervisor of Records (July 19, 2024). In my July 19th determination, I ordered the Department to clarify its claims for withholding and redacting responsive records under Exemptions (a) and (f) of the Public Records Law. Subsequently, the Department responded on July 25, 2024, and on September 4, 2024. Unsatisfied with the Department’s responses, Mr. Hourihan petitioned this office, and this appeal, SPR24/2500, 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 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

Detective Sergeant Moses Pereira SPR24/2500 Page 2 September 17, 2024 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. 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 25th and September 4th Responses In its July 25, 2024 response, the Department cites Exemptions (a) and (f) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (f). In its September 4, 2024 response, the Department provides two responsive videos in redacted form. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) The current definition of CORI is as follows:

Detective Sergeant Moses Pereira SPR24/2500 Page 3 September 17, 2024 “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its July 25th response, the Department argues the following under CORI, as it operates through Exemption (a) of the Public Records Law: The Criminal Offender Record Information (CORI) Act, codified at G.L. c. 6, §§ 167-178B, mandates the confidentiality of records that contain identifiable information related to criminal charges, arrests, pre-trial proceedings, and other judicial proceedings. The requested body-worn camera footage constitutes CORI as it captures identifiable information directly related to the arrest and subsequent criminal charges against [a named individual]. Specifically, the footage documents the interactions between law enforcement officers and [a named individual] during the arrest, providing detailed visual and audio evidence of the incident. This information is integral to the criminal case and falls squarely within the scope of CORI protections, which are designed to prevent undue influence on ongoing judicial proceedings and protect the rights of the accused. The CORI Act explicitly restricts the dissemination of such records to ensure that sensitive information related to criminal investigations and proceedings remains confidential. Releasing the footage would violate these statutory confidentiality requirements and could prejudice the defendant’s right to a fair trial by exposing

Detective Sergeant Moses Pereira SPR24/2500 Page 4 September 17, 2024 key evidence to public scrutiny before adjudication. 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. 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 law enforcement agencies 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. In its July 25th response, under Exemption (f), the Department argues the following: Releasing the body-worn camera footage in question would result in a premature and prejudicial disclosure of critical investigatory materials directly related to an active criminal prosecution. The criminal docket for [a named individual] remains open, and the footage contains evidence that is pivotal to the ongoing investigation and prosecution. Disclosure at this stage could: 1. Alert Potential Suspects: The footage includes tactical details and

Detective Sergeant Moses Pereira SPR24/2500 Page 5 September 17, 2024 interactions that could reveal law enforcement strategies and methodologies, potentially alerting other suspects involved in the case and compromising future investigative efforts. 2. Influence Witness Testimonies: Public access to the footage could impact witness statements and recollections, as potential witnesses may alter their testimonies based on the content viewed in the footage. 3. Expose Law Enforcement Tactics: The footage captures specific investigatory techniques and procedures employed by law enforcement officers. Revealing these methods could undermine current and future law enforcement operations by educating suspects on how to evade detection and capture. Massachusetts courts have consistently upheld the necessity of protecting such investigatory materials to preserve the integrity and efficacy of law enforcement efforts. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (f) claims made by the Department to redact responsive records, the Department must provide this office with un-redacted copies of the responsive 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.

Detective Sergeant Moses Pereira SPR24/2500 Page 6 September 17, 2024 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: Mark Hourihan