Kristen Brissette v. Yarmouth, Town of - Police Department (SPR 20242942)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2024 SPR24/2942 Nicholas Giammarco Police Officer Records and Evidence Division Yarmouth Police Department 340 Higgins Crowell Road West Yarmouth, MA 02673 Dear Officer Giammarco: I have received the petition of Kristen Brissette, of the Boston Broadside, appealing the response of the Yarmouth 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 22, 2024, Ms. Brissette requested, “a copy of a report involving [a named individual] that was filed with the Yarmouth Police Department that after review was referred to the Barnstable Police Department.” The Department responded on October 23, 2024. Unsatisfied with the response, Ms. Brissette petitioned this office and this appeal, SPR24/2942, 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(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

Nicholas Giammarco SPR24/2942 Page 2 November 7, 2024 The Department’s October 23rd Response In its October 23, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold records. Current Appeal In his appeal, Ms. Brissette states, “[a]fter contacting the Yarmouth Police Department to obtain the records of a recent investigation… I was advised by Yarmouth Police Department that they have documents relating to this investigation; however, the ‘venue is in Barnstable’ and the records were transferred to Barnstable Police Department. I contacted the Barnstable Police Department and was advised there is an investigation, but they are not ‘releasing anything at this time.’ I believe that the police departments are ‘stalling’ until after the November 5th election.” 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 289-290. Subsequent to the opening of this appeal, the Department sent an email to this office on October 29, 2024 and stated, “[a]lthough we recognize the desire for public interest, by releasing our report, we fear it may have a negative impact or may hinder the investigation being conducted by the Barnstable Police Department, citing Exemption F.” Although the Department claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the records contain confidential

Nicholas Giammarco SPR24/2942 Page 3 November 7, 2024 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 records “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. Conclusion Accordingly, the Department is ordered to provide Ms. Brissette with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Kristen Brissette