Hau-ran H. Tsai v. Sunderland, Town of - Police Department (SPR 20243360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3360 Erik J. Demetropoulos Chief of Police Sunderland Police Department 105 River Road Sunderland, MA 01375 Dear Chief Demetropoulos: I have received the petition of Hau-ran H. Tsai, appealing the response of the Sunderland 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 7, 2024, Mr. Tsai requested, “any records of complaints, calls, or any other records of communications with the Sunderland Police Department regarding [a named individual] or the property at . . . Sunderland, MA, 01375, made between September 1, 2024 and present.” On October 22, 2024, Mr. Tsai made an additional request for the following: [1.] [A]ny records of complaints, calls, or any other records of communications with the Sunderland Police Department regarding [a named individual] or the property at . . . Sunderland, MA, 01375, made between October 7, 2024 and present. [2.] Any and all records for any other complaints, calls or other communications with the Sunderland Police Department dating between January 1, 2024, and present by any individual identified as having made a complaint against [a named individual] in Item #1, above, or in my prior public records request dated October 7, 2024. Prior Appeals These requests were the subject of prior appeals. See SPR24/2928 Determination of the Supervisor of Records (November 7, 2024) and SPR24/3085 Determination of the Supervisor of Records (November 25, 2024). In my November 25th determination, I found that while names and addresses of voluntary witnesses may permissibly be withheld from disclosure under Exemption (f), the Department had not met its burden to withhold the entirety of audio recordings under Exemption (f) of the Public Records Law. The Department responded on December 9, 2024, citing Exemption (f) of the Public Records Law to withhold additional 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

Chief Erik J. Demetropoulos SPR24/3360 Page 2 December 23, 2024 records and redact information. Unsatisfied with the response, Mr. Tsai petitioned this office and this appeal, SPR24/3360, 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, § l0A(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. 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 December 9th response In its December 9, 2024 response, the Department expanded on its claim of Exemption (f) of the Public Records Law to redact information and withhold additional records responsive to the request. Current Appeal In his appeal, Mr. Tsai states the following: [O]nce again, it is my position that [the Department] is misconstruing the applicable law. Most importantly, the Supervisor found in the prior determination, dated November 25, 2024, that Exemption F was indeed applicable because the requested records in question concerned voluntary witnesses. I accept the Secretary’s determination on this point of law; however, I note that Sunderland PD now insists the individual at issue is not in fact a “voluntary witness” but rather a “victim.” If that is indeed the case, the Public Records Law contains no applicable exemption. A “victim” is not, by definition, a “voluntary witness” and additionally would not require any further incentive to contact the police about an alleged crime. As such, the rationale originally cited by Sunderland PD, that redaction of the caller’s identity is necessary to incentivize callers to provide information to the police, is not applicable in this case. Indeed, the very same

Chief Erik J. Demetropoulos SPR24/3360 Page 3 December 23, 2024 records produced by Sunderland PD also contained a report by other individuals that they were the victims of harassment; Sunderland PD apparently did not believe it was necessary to redact the identity of the victim of this much more serious crime, and Sunderland PD did not express any concern that their failure to do so would disincentivize citizens from reporting such to the police. Accordingly, I respectfully request that the Secretary reconsider its determination in light of this new information. Otherwise, with respect to Sunderland PD’s claim that they are unable to satisfactorily redact the recordings which they were ordered to produce, I note that audio recordings are generally easily modified without any requisite expertise or equipment. For example, a voice could be distorted to prevent recognition simply by altering the pitch of the recording using freely available software, while specific statements could be redacted by adding a “beep” or other obscuring tone, as is commonly done for profanity on commercial television. In the alternative, if redaction of the original audio itself is absolutely not possible, a short phone call to a police dispatcher could easily be transcribed into written format. Regardless, Sunderland PD should still be ordered to preserve and produce the records in the most complete and transparent form possible. Finally, I note that Sunderland PD’[s] characterization of the town as a “small, quiet & bucolic town” where “most of the neighbors know one another” is not accurate. While the town certainly is not a major metropolitan hub, it still boasts a respectable population of 3,663 over 15 square miles, according to the 2020 census… As such, it is highly unlikely that a Sunderland resident, let alone any Massachusetts resident, would be able to identify a specific individual out of tens of thousands solely from the sound of their voice… I accordingly respectfully request that the Supervisor find that modification of the recordings is not necessary to conform with any applicable exemption and that said recordings be provided in their unredacted entirety. 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

Chief Erik J. Demetropoulos SPR24/3360 Page 4 December 23, 2024 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 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. Under Exemption (f), the Department stated the following: I forwarded [Mr. Tsai] the appropriate Dispatch Logs and Police Report as he had requested. In the Logs & Police Report I did redact the name of the Victim/ Witness. I was unable to locate any other communication with or complaints filed by the victim in this case, with any Sunderland Officer or anyone in the Sunderland Police Department. (Mr. Tsai was informed of such)[.] As it has been mentioned numerous times throughout this entire process I cited Exemption F, the Investigatory Exemption, more specifically explaining the Voluntary Witness Exemption… … I continue to argue that the “Witness” is also a “Victim” as they called the Police Department due to excessive or disturbing noise. Not only under MGL C. 272 s. 53 Disturbing the Peace but also under the Town of Sunderland By-Laws… All of this aside, I still furnished the Dispatch Logs & Police Report to Mr. Tsai, citing [Exemption (f)] as the reason to remove the calling party’s name, as victim’s & witnesses should be allowed to contact the Police Department without fear of retaliation or retribution. Finally, in this recent letter, there is a need to explain further why we’re unable to provide the recordings. It should be noted that there is NO video recording, only audio recording. I do not have the means, ability, or software to redact audio

Chief Erik J. Demetropoulos SPR24/3360 Page 5 December 23, 2024 recordings. When a party calls in to file a complaint (either via 9-1-1 or our non- emergency line of 413-625-8200), it is recorded. This is a small, quiet & bucolic town. Most of the neighbors know one another so providing the audio to Mr. Tsai would undoubtedly give him the name and/or the voice of the calling party; therefore negating the ability to offer them (the Victim) the assurance to call Police without fear. Where the Department states that it redacted identifying information of civilian witnesses, I find the Department may properly claim Exemption (f) in withholding, from the records, the identities and identifying information of the complainant and voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). However, it remains unclear how the Department cannot alter the recording or provide a transcript of the audio recording to preserve the anonymity of the witness and/or complainant. The Department’s redaction capabilities or lack thereof do not relieve it of its obligations to comply with requests for records. 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). Conclusion Accordingly, the Department is ordered to provide Mr. Tsai with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. Sincerely, Manza Arthur Supervisor of Records cc: Hau-ran H. Tsai