Lana Sullivan v. Somerset, Town of - Police Department (SPR 20250300)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2025 SPR25/0300 Captain William Tedford Public Records Access Officer Somerset Police Department 465 County Street Somerset, MA 02726 Dear Captain Tedford: I have received the petition of Lana Sullivan appealing the response of the Somerset 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 January 30, 2025, Ms. Sullivan requested “copies of all documentation in the possession, custody and control of the Somerset Police Department regarding any incident(s) on December 30, 2024 at the Fairfield Inn in Somerset, Massachusetts, including but not limited to police report no. #24-1280-OF.” The Department responded on January 30, 2025, denying access to the responsive records. Unsatisfied with the response, Ms. Sullivan petitioned this office, and this appeal, SPR25/0300, was opened as a result. Subsequent to the opening of this appeal, on February 4, 2025, the Department provided an additional 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

Captain William Tedford SPR25/0300 Page 2 February 11, 2025 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 Responses In its January 30, 2025 response, the Department cited Exemption (f) of the Public Records Law to withhold records responsive to the request. In its February 4, 2025 response, the Department further cited Exemption (f). Current Appeal In her appeal petition, Ms. Sullivan states that “[t]he exemption does not create a blanket exemption for records kept by police departments and a custodian of records must demonstrate a specific prejudice to law enforcement in the particular case… The Somerset Police Department, which has acknowledged that it is not investigating the incident that is the subject of the public records request, has not demonstrated any specific prejudice that would result from the disclosure of the public records sought in this matter.” In response to the Department’s February 4, 2025 email, Ms. Sullivan stated, “I do not believe there is any additional information contained in the response by the Somerset Police Department that would justify the withholding of the public information requested. Again, that an incident may have been referred to another agency or agencies that may or may not be investigating the matter does not entitle the Somerset Police Department to withhold public records in its possession, custody or control. The Somerset Police Department is not investigating the incident that is the subject of the public records requested. Nor has it demonstrated any specific prejudice that would result from the disclosure of the public records sought in 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

Captain William Tedford SPR25/0300 Page 3 February 11, 2025 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 assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 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 states, “[t]he records requested contain information, which is still currently being investigated, if disclosed, would constitute an unjust disclosure to the person’s investigation. Premature disclosure of these requested records, which are inextricably linked to this investigation, would compromise the intimate details of said investigation. In addition, the confidentiality to persons, details that may alert suspect(s), allow for the destruction of evidence, and jeopardize future court cases.” In its February 4, 2025 response, the Department stated, “our office consulted with our detective division who then informed us that this case is still under investigation with the MA State Police. Our detective division consulted with MA State Police regarding the case and this request and their agency stated that releasing the report was not advisable… Premature disclosure of these requested records, which are inextricably linked to this investigation, would compromise the intimate details of said investigation.” Based on the Department’s response, it is unclear what type of records it possesses that it 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 records it has in its possession that it is withholding under Exemption (f). Further, although the Department claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under

Captain William Tedford SPR25/0300 Page 4 February 11, 2025 Exemption (f). It is additionally uncertain from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion 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 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Sullivan 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 the 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. Sullivan may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lana Sullivan