Joel Mroz v. Boston, City of - Police Department (SPR 20242733)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2024 SPR24/2733 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Joel Mroz appealing the response of the Boston 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 29, 2024, Mr. Mroz requested, “[t]he . . . Department’s Neighborhood Watch Unit’s Contact List for the Fenway Neighborhood.” The Department responded on July 5, 2024. Unsatisfied with the Department’s response, Mr. Mroz petitioned this office and this appeal, SPR24/2733, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response to this office and Mr. Mroz on October 2, 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. 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. SPR24/2733 Page 2 October 17, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 Responses In its July 5, 2024 response, the Department assigned Mr. Mroz’s request with the reference number R002172-052924 and cited Exemptions (c) and (f) of the Public Records Law to withhold the requested record in its entirety. In its supplemental response dated October 2, 2024, the Department stated that it “stands by it’s [sic] response sent . . . on July 5th denying [the record] under Exemptions C and F of the Public Records Law.” Current Appeal In his appeal, Mr. Mroz suggests that the Department did not meet its burden to withhold the record in its entirety. Specifically, he states the following: [T]he individuals whom the BPD seeks to protect by denying my Public Records Request through exemptions (c) and (f) are in fact the perpetrators of these crimes of vandalism against me. Thus, in this case, there can be no “effective law enforcement” that “would probably [be] so prejudiced” when the law is being violated by the very individuals whom the BPD seeks to protect by denying my Public Records Request under exemptions (c) and (f). 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, 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.” Id. at 289-90.

Shawn A. Williams, Esq. SPR24/2733 Page 3 October 17, 2024 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. Bougas, 371 Mass 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Under Exemption (f), the Department argues the following: [T]he requested record would alert potential suspects to the activities of investigative officials. Providing the Neighborhood Watch contact list for the Fenway Neighborhood would inhibit investigatory processes and future law enforcement efforts because individuals would be less likely to participate. Disclosure of this record would disclose confidential investigative techniques, procedures or sources of information. Investigative officials are allowed to provide assurances of confidentiality to individuals even after investigations are closed so that they will speak openly about matters under investigation. Identifying citizens who participate in the investigatory process will have a chilling effect on future law enforcement efforts. The ability of police departments to establish relationships with neighborhood residents and

Shawn A. Williams, Esq. SPR24/2733 Page 4 October 17, 2024 cooperation from those residents is essential to the investigatory process and effective law enforcement. Neighborhood watch groups play a vital role in community policing and building trust with residents and the police department. Disclosing the identity of individuals may discourage those individuals from communicating with the police. If individuals and police departments are not able to communicate freely, the investigatory process will be harmed. Identifying citizens who participate in the investigatory process will have a chilling effect on future law enforcement efforts. To protect the confidentiality of individuals, information relating to confidential investigative techniques and to prevent a chilling effect of future law enforcement efforts, the Department is denying your request because disclosure would prejudice future law enforcement efforts; therefore, disclosure of the requested record is not in the public interest. Based on the Department’s response, I find that to the extent that the Department claims that disclosure would compromise effective law enforcement by discouraging the cooperation of individuals who require assurances of confidentiality so that they will cooperate with investigations (the “chilling effect”), the Department has met its burden to withhold the requested record under Exemption (f) of the Public Records Law. Consequently, I decline to opine on the applicability of Exemption (c) to withhold the requested record. Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Mroz is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joel Mroz