Joan P. Beckta v. Everett, City of - Police Department (SPR 20242978)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2978 Captain Scott Stallbaum Records Access Officer Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Stallbaum: I have received the petition of Joan Beckta appealing the response of the Everett 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 12, 2024, Ms. Beckta requested, “[a]ny and all materials on the destruction/vandalism/damage/disturbance . . . of the Everett Community Growers materials at . . . Broadway in October 2024. . . . Materials should include any videos, pictures, reports by ECG, reports by anyone else, witness statements, officers’ and detectives’ notes and anything else you have. . . .” The Department responded on October 15, 2024, denying the request. Unsatisfied with the Department’s response, Ms. Beckta petitioned this office and this appeal, SPR24/2978, 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. See 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 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

Captain Scott Stallbaum SPR24/2978 Page 2 November 13, 2024 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 October 15th response In its October 15, 2024 response, the Department advised, “[t]he information that you are requesting is currently under active investigation and is exempted under Exemption F.” Current Appeal In her appeal, Ms. Beckta contests the Department’s claim of Exemption (f) to deny her request and indicates that she “followed the [Department’s] response up with an email on 10/15/2024 in which [she] reminded the RAO that an RAO can’t just say [‘]Exemption 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 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. The Department’s response did not provide supporting information on how the investigative process is ongoing, nor does it describe how the requested records are part of the investigation. It is additionally uncertain 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 by Exemption (f). See Id. (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.

Captain Scott Stallbaum SPR24/2978 Page 3 November 13, 2024 Further, based on the Department’s response, it is unclear what type of records it possesses that it is withholding from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the Department must identify the type of records it has in its possession that it is withholding under Exemption (f). As a result, I find that the Department did not meet its burden of specificity to withhold the requested records under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Ms. Beckta 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. Sincerely, Manza Arthur Supervisor of Records cc: Joan Beckta