Brian Crandall v. Taunton, City of - Police Department (SPR 20243191)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3191 John P. Joyce Lieutenant Records Access Officer Taunton Police Department 23 Summer Street Taunton, MA 02780 Dear Lieutenant Joyce: I have received the petition of Brian Crandall, of WJAR-TV, appealing the response of the Taunton Police Department (Department/TPD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2024, Mr. Crandall requested, “... any and all police records related to calls for service at [a specified address] since January 1 2024, including reports and officer body worn camera recordings.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2197 Determination of the Supervisor of Records (August 16, 2024). In my August 16th Determination, I found that it was unclear how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. The Department responded on August 30, 2024. Unsatisfied with the response, Mr. Crandall petitioned this office and this appeal, SPR24/3191, 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 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

Lieutenant John P. Joyce SPR24/3191 Page 2 December 10, 2024 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. Current appeal In his appeal, Mr. Crandall asserts, “I argue the City is using an overly broad interpretation of state law to continue to prevent the release of any information. The City Solicitor cites 97D as the main factor for denying the release of records. 97D states ‘all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality’. If the law is meant to protect victims of domestic violence, the Mayor is the accused suspect, not an alleged victim, and I would argue not subject to use 97D as a shield to withhold records.” The Department’s August 30th Response In its August 30, 2024 response, the Department identified the records as follows and cited Exemptions (a), (f), and (n) of the Public Records Law to withhold the records. [1] TPD Report #24-017384 [2] Evidentiary Photos associated with TPD Report #24-017384 [3] Body-worn camera recordings from multiple responding officers to the above referenced call for service, #24-017384. [4] Booking Photos associated with TPD Report #24-017384 [5] Booking Room audio/video associated with TPD Report #24-017384. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is

Lieutenant John P. Joyce SPR24/3191 Page 3 December 10, 2024 restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its August 30th response, the Department cited G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. In its response, the Department stated that, “TPD is constrained in its ability to reveal the factual basis for a record falling within the scope of the above statutes, because of the strict confidentiality that is required. The strict confidentiality mandated by the statutes often militates against revealing that a responsive record even exists. TPD’s position is that all of the records fall within the ambit of §97D and/or §98F. As required by said statutes, TPD will not disclose any information about the records unless such disclosure is part of a confidential, in camera review by the Supervisor of Records or a court of competent jurisdiction. See 950 CMR 32.08(4).” The Department further states, “TPD cannot issue redacted records because disclosure, even in a redacted form, would violate the confidentiality requirements imposed under the above-referenced statutes. ‘§97D … imposes a continuing obligation on police departments to maintain the entirety of those reports [falling within the statute] in a manner assuring their confidentiality’.” Exemption (f) Exemption (f) permits the withholding of:

Lieutenant John P. Joyce SPR24/3191 Page 4 December 10, 2024 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f): [1] The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials; [2] The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or [3] Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the Department opines, “...TPD asserts that the records fall within the ‘investigatory exemption’ to the definition of public records under M.G.L. c. 4, §7(26)(f). . . . The exemption protects “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.” M.G.L. c. 4, §7(26)(f). The investigation is inherently incomplete as

Lieutenant John P. Joyce SPR24/3191 Page 5 December 10, 2024 the records relate to a matter that is pending in court. Disclosure of the records while an investigation is ongoing and a case is pending could impact judicial proceedings and thereby prejudice the possibility of effective law enforcement.” Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its response, the Department states, “...the booking room is a secure, non-public area within the police station. The release of audio/video from the booking room presents a risk of undermining police security by revealing information about the layout of the facility and potential security vulnerabilities. Therefore, TPD asserts that booking room audio/video falls within the exemption for records that disclose the internal layout and structural elements of buildings and facilities, the disclosure of which would be likely to jeopardize public safety.”

Lieutenant John P. Joyce SPR24/3191 Page 6 December 10, 2024 In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the records pursuant to Exemptions (a), (f), and (n) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Brian Crandall