James R. McMahon III v. Townsend, Town of - Police Department (SPR 20243052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2024 SPR24/3052 Jessica Demeo Records Clerk Townsend Police Department 70 Brookline Road Townsend, MA 01469 Dear Ms. Demeo: I have received the petition of James R. McMahon III, Esq., on behalf of James Burson, appealing the response of the Townsend 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 3, 2024, Mr. Burson requested the accident report and associated video recording for an accident that occurred on September 27, 2024 at 18 Main Street in Townsend, Massachusetts. On October 4, 2024, the Department provided a response. Unsatisfied with the Department’s response, Attorney McMahon petitioned this office and this appeal, SPR24/3052, 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

Jessica Demeo SPR24/3052 Page 2 November 21, 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney McMahon’s status will play no role in a determination as to whether the records should be disclosed or withheld under the Public Records Law. The Department’s October 4th Response In its October 4, 2024 response, the Department provided Mr. Burson with a copy of the requested accident report and withheld the requested video recording pursuant to Exemption (f) of the Public Records Law. The Department advised that the recording is “… related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants.” Current Appeal In his November 12, 2024 petition to this office, Attorney McMahon objects to the withholding of the requested video recording. Attorney McMahon states that the recording is being sought “… to assist in the defense of [an identified individual] at a criminal Clerk- Magistrate’s Show Cause Hearing scheduled before the Ayer District Court, on December 10, 2024.” Attorney McMahon further advises that he and his client “… need this unredacted video footage to prepare for the Hearing, and possibly subpoena witnesses contained therein; and also to examine that video footage in order to defend against their content.” 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).

Jessica Demeo SPR24/3052 Page 3 November 21, 2024 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, 371 Mass at 62. 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. 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. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In a November 12, 2024 email communication to this office, the Department confirmed Attorney McMahon’s statement that a criminal complaint is pending and that the requested video footage is the subject of the incident being heard at Ayer District Court for a Magistrate’s Hearing on December 10, 2024. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Jessica Demeo SPR24/3052 Page 4 November 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: James R. McMahon III, Esq.