Julia Deal v. Holliston, Town of - Police Department (SPR 20243295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2024 SPR24/3295 Shannon Tuttle Records Clerk Holliston Police Department 550 Washington Street Holliston, MA 01746 Dear Ms. Tuttle: I have received the petition of Julia Deal appealing the response of the Holliston 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 24, 2024, Ms. Deal requested “… incident reports and/or other related documentation connected to the 12/11/2023 death of [a named individual] in Holliston.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2988 Determination of the Supervisor of Records (November 12, 2024). I closed my November 12th determination with the understanding that the Department would provide Ms. Deal with a supplemental response. The Department provided a response on November 19, 2024. Unsatisfied with the response, Ms. Deal petitioned this office and this appeal, SPR24/3295, 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 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

Shannon Tuttle SPR24/3295 Page 2 December 19, 2024 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 19th Response In its November 19, 2024 response, the Department withheld records responsive to Ms. Deal’s request, citing Exemption (f) of the Public Records Law. Current Appeal In her December 6, 2024 petition to this office, Ms. Deal objected to the withholding of the requested record, stating: Exemption f is not to be considered a blanket exemption. But instead, reasonable efforts should be made to provide documentation with identifying information about witnesses redacted, along with any other sensitive information. 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.” Id. at 289-90. In its November 19, 2024 response, the Department states:

Shannon Tuttle SPR24/3295 Page 3 December 19, 2024 To clarify, the incident you are requesting records for is the subject of an open and ongoing criminal investigation by the Town of Holliston and the District Attorney’s Office. Any disclosure of records at this stage would involve “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.” Consequently, your request remains denied under G.L. c. 4, § 7, cl. 26 (exemption f). Disclosure of any evidence at this time is presumptively prejudicial to effective law enforcement and prosecution as it may reveal the Commonwealth’s case should criminal charges be filed. See Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979), and Continental Assurance Co. v. Diori- Vlougis, 51 Mass. App. Ct. 403, 411-412 (2001). Exemption (f) allows “the prevention of confidential techniques, procedures or sources of information” from being publicly disclosed. WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990), and Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Based on the Department’s response, I find that it has not met its burden to withhold the responsive records under Exemption (f). It is unclear how disclosure 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 to withhold records under Exemption (f). Additionally, it is uncertain how the responsive records can be withheld in their entirety. 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 these matters. Further, it is unclear what type of records the Department possesses that are being withheld from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based …”). Therefore, the Department must identify the type of records in its possession that it is withholding under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Ms. Deal with a response to the request, 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. Ms. Deal may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Shannon Tuttle SPR24/3295 Page 4 December 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Julia Deal