Hau-ran H. Tsai v. Sunderland, Town of - Police Department (SPR 20243085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2024 SPR24/3085 Erik J. Demetropoulos Chief of Police Sunderland Police Department 105 River Road Sunderland, MA 01375 Dear Chief Demetropoulos: I have received the petition of Hau-ran H. Tsai, appealing the response of the Sunderland 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 7, 2024, Mr. Tsai requested, “any records of complaints, calls, or any other records of communications with the Sunderland Police Department regarding [a named individual] or the property at . . . Sunderland, MA, 01375, made between September 1, 2024 and present.” On October 22, 2024, Mr. Tsai made an additional request for the following: [1.] any records of complaints, calls, or any other records of communications with the Sunderland Police Department regarding [a named individual] or the property at . . . Sunderland, MA, 01375, made between October 7, 2024 and present. [2.] Any and all records for any other complaints, calls or other communications with the Sunderland Police Department dating between January 1, 2024, and present by any individual identified as having made a complaint against [a named individual] in Item #1, above, or in my prior public records request dated October 7, 2024. Prior Appeal The October 7, 2024 request was the subject of a prior appeal. See SPR24/2928 Determination of the Supervisor of Records (November 7, 2024). In my November 7th determination, it was my understanding that the Department intended to provide a further response to Mr. Tsai to address his records request. The Department responded on November 5, 2024, providing responsive records and citing Exemption (f) of the Public Records Law to withhold additional records and redact information. Unsatisfied with the response, Mr. Tsai petitioned this office and this appeal, SPR24/3085, was opened as a result. 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

Chief Erik J. Demetropoulos SPR24/3085 Page 2 November 25, 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, § l0A(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 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 5th response In its November 5, 2024 response, the Department provided records and cited Exemption (f) of the Public Records Law to redact information and withhold additional records responsive to the request. Current Appeal In his appeal, Mr. Tsai states the following: On October 25, 2024, I appealed a denial of records by the Sunderland Police Department (“Sunderland PD”) made on October 7, 2024. Shortly before that, on October 22, 2024, I had also submitted a second request for documents created after the first request. On November 7, 2024, your office issued a determination on the October 25 appeal, finding that Sunderland PD had indicated an intent to respond to the second request. Sunderland PD had in fact responded to the second request on November 5, 2024. However, Sunderland PD again denied some requests and redacted others. Accordingly, I respectfully appeal the second denial, and incorporate my appeal regarding the documents denied in the first request. Once again, Sunderland PD cited… exemption (f) as the basis for their redaction. For the same reasons set forth in my prior appeal, that exemption is not applicable to the documents denied in the second request…

Chief Erik J. Demetropoulos SPR24/3085 Page 3 November 25, 2024 Additionally, I note that Sunderland PD has refused to provide any information regarding the police calls requested, citing the same exemption as above. As matter of fact, not only does Sunderland PD incorrectly describe the caller as a “witness” despite the lack of any actual “investigation,” it also misconstrues the law with respect to the release of police calls. Indeed, it is common for police departments to release recordings of police calls, as evidenced in news coverage of many high-profile criminal cases. The public interest in accessing such recordings is well-established.1 By contrast, Sunderland PD has not identified any specific reason why it cannot release even the gender or voice of the caller in this particular case. Even assuming arguendo that Sunderland PD had a legitimate reason to withhold the recording itself, it could still have provided a written transcript of the calls. 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. 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 voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will

Chief Erik J. Demetropoulos SPR24/3085 Page 4 November 25, 2024 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. Under Exemption (f), the Department stated the following: [1.] [Mr. Tsai’s] request for any and all calls are denied. [2.] The latest addition to this request… was also redacted Similarly in [Mr. Tsai’s] last request, I must deny a portion of this request for copies of reports pursuant to Exemption (f)… I believe that under Exemption (f), the law dictates to me that I am unable to furnish [Mr. Tsai] with the names, addresses, or even voices/recordings of the victims. In that law… I am unable to provide [Mr. Tsai] with that information (name, gender, or voices, etc.) of the victims or witnesses, so as to provide an assurance of confidentiality to private citizens so that they will speak openly about matters. This is also known as the Voluntary Witness Exemption. Furthermore, providing [Mr. Tsai] with the redacted Logs & Reports, I am unable to provide [Mr. Tsai] with the recordings as such records could not possibly be redacted in a manner to avoid identification of such witnesses. To the extent the redacted record provided contains names and addresses of voluntary witnesses, the Department may permissibly withhold such portions from disclosure under Exemption (f). However, based on the Departments response, although the Department has stated that the withheld recordings “could not possibly be redacted in a manner to avoid identification of such witnesses,” it is unclear why the recordings cannot be redacted in order to preserve the identities of the voluntary witnesses. The Department must explain whether segregable portions of the recordings can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Tsai with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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.

Chief Erik J. Demetropoulos SPR24/3085 Page 5 November 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Hau-ran H. Tsai