Brandon Stokes v. Boston, City of - Public Records (SPR 20243057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2024 SPR24/3057 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brandon Stokes, of 7News WHDH Boston, 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 October 28, 2024, Mr. Stokes requested, “... surveillance video from any and all cameras around City Hall Plaza showing a drone falling on people during the Celtics watch party on 10/22/24 around 8pm.” The Department responded on November 7, 2024. Unsatisfied with the response, Mr. Stokes petitioned this office and this appeal, SPR24/3057, 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. 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

Shawn A. Williams, Esq. SPR24/3057 Page 2 November 25, 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 November 7th response In its November 7, 2024 response, the Department provided the reference number B003108-102824 for this request and cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Stokes asserts, “[i]t’s unclear how this is an ongoing investigation. It’s also [un]clear how the release of this surveillance video would disclose confidential investigative techniques or have ‘a chilling effect on future law enforcement efforts’.” 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 289-90. 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. 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 disclosure of the names and other identifying information of victims, complainants and

Shawn A. Williams, Esq. SPR24/3057 Page 3 November 25, 2024 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. In its response, the Department asserted “...the record you are requesting is related to an ongoing open investigation and its release at this time will prejudice effective law enforcement.” The Department further asserted, Disclosure of the requested record would alert potential suspects to the activities of investigative officials. Alerting potential suspects of the activities of law enforcement officials would have a detrimental impact on law enforcement. Disclosure of this record would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and the ability of the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult. The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. If citizens and prospective witnesses do not come forward, the investigatory process will be hampered. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement which is not in the public interest. Further, releasing this record at this time may influence potential witnesses thereby compromising the investigatory process. To protect the integrity of the investigative process, information relating to confidential investigative techniques, procedures, and sources, and to maintain the ability to foster cooperation with the public, the Department is denying your request at this time. A records custodian is obligated to provide segregable portions of records where possible ... However, providing segregable portions of the requested record is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding this record in its entirety is necessary to prevent alerting suspects to the confidential investigatory techniques of law enforcement officials. Although the Department claims that there is an open investigation, it is unclear how the investigation remains ongoing and how the requested records are part of the ongoing investigation. Also, it is not clear how disclosure of the surveillance video would disclose confidential investigative techniques, procedures or sources of information. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such

Shawn A. Williams, Esq. SPR24/3057 Page 4 November 25, 2024 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. Conclusion Accordingly, the Department is ordered to provide Mr. Stokes with a response to the 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. Mr. Stokes 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: Brandon Stokes