Rebecca Raymond v. New Bedford, City of - Police Department (SPR 20242798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2024 SPR24/2798 Officer John V. Barnes, Jr. Keeper of the Records New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Barnes: I have received the petition of Rebecca Raymond appealing the response of the New Bedford 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 October 9, 2024, Ms. Raymond requested a copy of “… police report #24-949-OF.” The Department provided a response on October 10, 2024. Unsatisfied with the response, Ms. Raymond petitioned this office and this appeal, SPR24/2798, was opened as a result. While this appeal was pending, I learned that the Department provided Ms. Raymond with a supplemental response on October 15, 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

Officer John V. Barnes, Jr. SPR24/2798 Page 2 October 22, 2024 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 Responses In its October 10, 2024 response, the Department informed Ms. Raymond that the “… [c]ontents of [the] report are not releasable without a court order.” In its supplemental response dated October 15, 2024, the Department further clarified the basis of its withholding, stating, “… the current requested police report is pending finalization. For this reason, the Department withholds the requested record pursuant to G.L. c. 4, § 7(26)(f) … disclosure to the public of materials and other information prior to the investigation’s formal conclusion and written report is not in the public’s interest.” 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.” Id. at 289-90. Based on the Department’s response, it is uncertain whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any segregable portion “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-

Officer John V. Barnes, Jr. SPR24/2798 Page 3 October 22, 2024 exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the Department did not meet its burden of specificity in claiming Exemption (f) of the Public Records Law to withhold the record in its entirety. Conclusion Accordingly, the Department is ordered to provide Ms. Raymond with a response to her 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. Ms. Raymond may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rebecca Raymond Katherine Schuko, Esq.