Brandon Stokes v. Boston, City of - Police Department (SPR 20243326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2024 SPR24/3326 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brandon Stokes, of 7 News WHDH Boston, appealing the response of the Boston 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 12, 2024, Mr. Stokes requested “police bodycam of an incident around 11:37pm on Friday 11/8/24 in which Boston Police responded to a report of an officer in trouble in the area of ... Canterbury Street.” The Department responded on November 15, 2024, and assigned tracking number B003244-111224 to the request. Unsatisfied with the Department’s response, Mr. Stokes petitioned this office, and this appeal, SPR24/3326, was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Mr. Stokes on December 12, 2024, the Department provided a further response. 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 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

Shawn A. Williams, Esq. SPR24/3326 Page 2 December 24, 2024 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 15th and December 12th Responses In its November 15, 2024 response, the Department states that it is withholding responsive body worn camera video pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). In its December 12, 2024 response, the Department further elaborates on its claims under Exemption (f). 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 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62.

Shawn A. Williams, Esq. SPR24/3326 Page 3 December 24, 2024 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):  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;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  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 November 15th response, under Exemption (f), the Department argues the following: All Body Worn Camera video associated with the incident that occurred on 11/08/24 on Canterbury Street, is associated with an active and ongoing investigation. As such, your request is denied, as all records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. G. L. c. 4, § 7 (26) (f). Disclosure of any responsive records would harm the investigative efforts of the Department. Additionally, in its December 12th response, the Department further argues the following: The Department denied your request because the records you are requesting relate to a matter that is part of an open investigation. . . . The Department stands by its decision and is denying your request pursuant to the investigatory exemption to the public records law because the records you seek are related to an ongoing open investigation, and their release at this time will prejudice effective law enforcement. A records custodian may withhold records concerning investigatory materials necessarily compiled out of public view by law enforcement officials where the disclosure of such materials would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See G. L. c.4, § 7(26) (f). . . . Records custodians may withhold records relating to an ongoing investigation if

Shawn A. Williams, Esq. SPR24/3326 Page 4 December 24, 2024 the release of such records would disclose confidential investigative techniques, procedures or sources of information. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). An essential part of the investigatory process includes a dialogue between police departments, individual citizens, and potential witnesses. Exemption (f) contemplates that individual citizens should be encouraged to come forward and speak freely with police concerning matters under investigation and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses, and interim conclusions. Id. The Department denies your request because the records are part of an open investigations and criminal proceedings; disclosure will prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records would interfere with enforcement proceedings. The body-worn camera videos are part of the investigation of this incident. Disclosure would prejudice the possibility of effective law enforcement that such disclosure is not in the public interest. Disclosure would prejudice effective law enforcement because officers and other prospective witnesses have not been interviewed. Disclosure would disclose confidential investigative techniques, procedures, or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses from coming forward or influencing witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and allowing the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult. The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. The investigatory process will be hampered if prospective witnesses do not come forward. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement, which is not in the public interest. Further, releasing this record at this time may influence potential witnesses, thereby compromising the investigatory process. The Department is denying your request to protect the integrity of the investigative process and information relating to confidential investigative techniques, procedures, and sources and to maintain the ability to foster cooperation with the public. These records are part of an ongoing investigation, and their disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested record is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts. A records custodian is obligated to provide segregable portions of records where possible. See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184- A (June 14, 2013). However, providing segregable portions of the requested records is impossible without revealing confidential investigative techniques, procedures, or sources of information. Withholding this record is

Shawn A. Williams, Esq. SPR24/3326 Page 5 December 24, 2024 necessary to prevent interference with enforcement proceedings. The disclosure would prejudice effective law enforcement and not be in the public interest. Once the investigations are concluded, the Department may reevaluate its position if you wish to make another public records request. To the extent that the Department claims that disclosure of the responsive would reveal the course of its ongoing investigation and chill the cooperation of witnesses, the Department may properly claim Exemption (f) of the Public Records Law to withhold the requested record. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Stokes is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes