Anthony T. Panebianco v. University of Massachusetts Amherst - Police Department (SPR 20243244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3244 Ian Cyr Deputy Chief University of Massachusetts – Amherst Police Department 585 East Pleasant Street Amherst, MA 01003 Dear Chief Cyr: I have received the petition of Attorney Anthony T. Panebianco appealing the response of the University of Massachusetts, Amherst 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 November 20, 2024, Attorney Panebianco requested, “all records relating to” five reports. The Department provided a response on November 30, 2024, citing Exemption (f) of the Public Records Law to withhold the responsive records. Unsatisfied with the response, Attorney Panebianco petitioned this office and this appeal, SPR24/3244, 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

Deputy Chief Ian Cyr SPR24/3244 Page 2 December 13, 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. The Department’s November 30th Response In its November 30, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold responsive records. Current Appeal In his appeal, Attorney Panebianco states, “[t]he custodian of the record has the burden ‘to prove with specificity’ that an exemption applies… The RAO did no such thing here. Rather, they asserted a blanket denial of the request. However, the RAO already provided the police reports and accompanying documents thereto to the University staff. The University staff are not witnesses, nor are they victims. They are an administrative body and a third-party. Wherefore, any claimed ‘prejudice’ is absurd. They waived that claim when they released the police records to third parties.” 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

Deputy Chief Ian Cyr SPR24/3244 Page 3 December 13, 2024 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 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 stated, “the Department may permissibly withhold these responsive records from disclosure under exemption (f). As a result, such information must be redacted/withheld under the law. If there is a change in the status of the investigation that could impact the applicability of this exemption, your request will be reevaluated. This case is scheduled for a showcause hearing on December 6, 2024, and is currently under litigation exempting it from disclosure at this time. [Attorney Panebianco’s] specific report should be requested through the normal discovery process at the District Court… Pursuant to 950 CMR 32.08 (2)(b), the SOR may deny records appeals where the ‘records in question are the subjects of disputes in active litigation, administrative hearings or mediation.’ Such is the situation here.” Active 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. Subsequent to the opening of this appeal, on December 10 and 11, 2024, the Department informed this office that a criminal complaint was filed in Eastern Hampshire District Court, and that a hearing regarding the matter occurred on December 6, 2024, Docket No. # 2498AC2176. In light of the pending litigation, I decline to opine on this matter at this time. I further decline to opine on the Department’s Exemption (f) claim to withhold the responsive records from disclosure. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b).

Deputy Chief Ian Cyr SPR24/3244 Page 4 December 13, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Anthony T. Panebianco, Esq.