Hector Montalvo v. Lowell, City of - Police Department (SPR 20242698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 8, 2024 SPR24/2698 Jacqueline Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Hector Montalvo appealing the response of the Lowell 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 August 3, 2024, Mr. Montalvo requested: [1] [T]he call for service for [identified location] to the Lowell police for Friday August 2 around 7pm [2] [A]udio communication with dispatch and the two officers responding car . . . and car . . . for Friday August 2 around 7pm [3] [F]ull body cam video of both officers responding to [identified location] on Friday August 2 around 7pm [4] [N]ame and badge number of both officers responding to [identified location] on Friday August 2 around 7pm [5] [T]he work cell phone log for the officer driving car . . . who used that phone to call while performing his duties between 7:10 pm through 7:40 pm. who he contacted. [6] [A] copy of the Cease-and-desist notice sent to the city and the Lowell police on 5/9/2023. Prior Appeal This request was the subject of a prior appeal. See SPR24/2498 Determination of the Supervisor of Records (September 16, 2024). In my September 16th determination, the Department was ordered to provide Mr. Montalvo with a response to his request. The Department responded on September 25, 2024. Unsatisfied with the response, Mr. Montalvo petitioned this office and this appeal, SPR24/2698, was opened as a result. 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

Jacqueline Cook SPR24/2698 Page 2 October 8, 2024 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). 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 September 25th Response In its September 25, 2024 response, the Department denied the request for records pursuant to Exemption (f) of the Public Records Law. Current Appeal In his appeal petition, Mr. Montalvo states, “I am appealing the Lowell police department refusal to provide Body cam video associated with my place of residence… Please note, [there] is no ongoing investigation…” 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

Jacqueline Cook SPR24/2698 Page 3 October 8, 2024 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, “[w]e received [Mr. Montalvo’s] request pursuant to the Massachusetts Public Records Law for the Body Worn Camera footage: [Item 3]. There are responsive videos, however, the department intends to withhold it due to the applicability of the below exemption: Exemption (F)…” The Department’s response does not indicate whether there is an ongoing investigation nor does it describe how the requested records are part of the investigation. It is additionally uncertain from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive 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 these matters. Unclear if additional records exist Based on the Department’s response, it is unclear if the Department possesses any additional records responsive to items 1, 2, 4, 5 and 6 of the request. 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). 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). Consequently, the Department must clarify whether any additional responsive records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Montalvo 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. Mr. Montalvo may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Jacqueline Cook SPR24/2698 Page 4 October 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Hector Montalvo