Christopher Batinsey v. Fitchburg, City of - Police Department (SPR 20243105)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 27, 2024 SPR24/3105 Matthew LeMay Police Captain Fitchburg Police Department 20 Elm Street Fitchburg, MA 01420 Dear Captain LeMay: I have received the petition of Attorney Christopher Batinsey appealing the response of the Fitchburg 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 16, 2024, Attorney Batinsey requested the following: [1.] All emails, from January 1, 2017 to December 31, 2018, sent to or from Detective… and [named individuals] [2.] All emails, from June 1, 2021 to June 31, 2022, sent to or from (Ret.) Detective… and [named individuals.] The Department responded on November 5, 2024. Unsatisfied with the response, Attorney Batinsey petitioned this office and this appeal, SPR24/3105, was opened as a result. Subsequent to the opening of this appeal, the Department sent an additional response on November 18, 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, § 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. 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 Matthew LeMay SPR24/3105 Page 2 November 27, 2024 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. The Department’s November 5th Response In its November 5, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the responsive records. Current Appeal In his appeal, Attorney Batinsey states, “[the Department] misapplies Exemption F of the Public Records Law to withhold public records. [The Department] has withheld 19 emails from disclosure. Enclosed with this letter are eight (8) of the 19 emails Fitchburg Police are withholding. I received these documents pursuant to a public records request. None of the emails and attachments concern search warrant matters.” 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. Under Exemption (f), the Department stated that it possesses, “[a] total of nineteen (19) emails related to [Attorney Batinsey’s] request. [The Department has] reviewed these emails and they contain operation plans and procedures related to narcotics search warrants. [Attorney Batinsey’s] request to obtain these emails [is] being denied due to Exemption F…”

Captain Matthew LeMay SPR24/3105 Page 3 November 27, 2024 Subsequent to the opening of this appeal, the Department sent an email to this office on November 18, 2024 and stated the following: The requested records consist of 19 emails containing operational plans and procedures related to narcotics search warrants. These materials qualify for exemption under [Exemption (f)] because: [1.] Protecting Investigatory Integrity The records were compiled as part of law enforcement investigations and include operational plans critical to the execution of narcotics search warrants. Disclosing such records would compromise investigative integrity by revealing strategies and methods developed to apprehend offenders and secure evidence. [2.] Preserving Public Safety The requested records contain details of law enforcement operations that, if disclosed, could endanger public safety. The dissemination of operational plans might allow individuals to circumvent law enforcement efforts, resulting in risks to officers and the public. [3.] Safeguarding Investigative Techniques The emails include sensitive techniques and methods used by the department, which are not public knowledge. Disclosing these details could diminish the effectiveness of future investigations and potentially expose officers to harm. [4.] Relevant Time Period While the request encompasses a time period extending several years back, the investigative techniques and operational strategies described in these communications remain relevant to current and future law enforcement efforts. Although the Department states that “[d]isclosing such records would compromise investigative integrity by revealing strategies and methods developed to apprehend offenders and secure evidence[,]” it is unclear how the records must be withheld in their entirety. Specifically, 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 this matter. Conclusion Accordingly, the Department is ordered to provide Attorney Batinsey 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.

Captain Matthew LeMay SPR24/3105 Page 4 November 27, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Christopher R. Batinsey, Esq.