Lilly D. Cushman v. Boston, City of - Police Department (SPR 20243369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2024 SPR24/3369 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 Lilly D. Cushman, Esq., of Boyle Shaughnessy Law, 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 October 24, 2024, Attorney Cushman requested the following records, in relation to an August 7, 2024 incident which occurred at an identified Boston-area college: 1. The logs, runsheets, call recordings, and other documents and materials generated as a result of, or in connection with the incident. 2. All photographs taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident. 3. All reports, citations, notes, memorandum, correspondence, email or other paperwork and/or documents generated or otherwise obtained during, in connection with, and/or as a result of the incident 4. All evidence taken from the scene relative to the incident. 5. All statements taken from any person associated with the incident. 6. All 911 calls, transcripts and/or tapes generated as a result of, or in connection of the incident. 7. All videos from cruiser cameras and/or body cameras taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident. 8. All surveillance videos obtained during, in connection with, and/or as a result of the incident. 9. If for some reason not included in 1-8 above, any document, photograph, sketch or other material generated or otherwise obtained during, in connection with, and/or as a result of the incident. 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. SPR24/3369 Page 2 December 24, 2024 The Department provided a response on October 29, 2024. Unsatisfied with the response, Attorney Cushman petitioned this office and this appeal, SPR24/3369, 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. 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 October 29th Response In its October 29, 2024 response, the Department assigned the request Reference Number B003073-102424, and informed Attorney Cushman that it was withholding responsive records pursuant to Exemptions (a) and (f) of the Public Records Law. Current Appeal In her December 16, 2024 petition to this office, Attorney Cushman objected to the Department’s withholding of responsive records, stating: We argue that this response is inadequate as it fails to prove through a preponderance of evidence that the cited Exemptions A and F apply. The response provided by the BPD is well short of the required “insight as to the confidential nature of the contents,” that is required to demonstrate that a record is exempt pursuant to Exemption F. Simply noting that the documents are involved in an investigation and have the “potential” to be presented to a grand jury does not meet the bare minimum for the aforementioned “insight,” and cannot be the basis for a denial to produce.

Shawn A. Williams, Esq. SPR24/3369 Page 3 December 24, 2024 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 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 response, the Department cited Massachusetts Rule of Criminal Procedure 5(d), which provides: The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court. No obligation of secrecy may be imposed upon any person except in accordance with law. Mass. R. Crim. P. 5(d). By its text, Rule 5(d) prohibits disclosure of matters occurring before the grand jury by anyone performing an “official function” relating to the grand jury. Mass. R. Crim. P. 5(d). The Department has not demonstrated that it performed an “official function” in relation to the grand

Shawn A. Williams, Esq. SPR24/3369 Page 4 December 24, 2024 jury proceeding relevant to this case. Accordingly, it is unclear how Rule 5(d) permits the Department to withhold the responsive records. The Department must clarify this matter. 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 response, the Department states: Specifically, the records requested pertain to an open case and as a result this material falls within the investigatory exemption to the public records law. G.L. c. 4 § 7(26)(f). The investigatory exemption provides custodians a basis for withholding investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials when the disclosure of such materials would compromise investigative efforts such that disclosure would not be in the public interest. G.L. c. 4, § 7(26)(f). Based on the Department’s response, I find that it has not met its burden of specificity in claiming Exemption (f) of the Public Records Law to withhold the responsive records in their entirety. Specifically, the Department did not demonstrate how disclosure of any segregable portion “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). 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).

Shawn A. Williams, Esq. SPR24/3369 Page 5 December 24, 2024 Additionally, it is unclear from the Department’s response what records it possesses which are responsive to Attorney Cushman’s request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the records in its possession that it is withholding under Exemptions (a) and (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Attorney Cushman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Attorney Cushman may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lilly D. Cushman, Esq. Christine O’Donnell, Esq.