Lilly D. Cushman v. Boston, City of - Police Department (SPR 20250478)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2025 SPR25/0478 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: 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

Christine O’Donnell, Esq. SPR25/0478 Page 2 February 27, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR24/3369 Determination of the Supervisor of Records (December 24, 2024). In my December 24th determination, I found that the Department had not met its burden to withhold the responsive records in their entirety pursuant to Exemptions (a) and (f) of the Public Records Law. The Department provided a response on January 3, 2025. Unsatisfied with the response, Attorney Cushman petitioned this office and this appeal, SPR25/0478, 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 January 3rd Response In its January 3, 2025 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 February 18, 2025 petition to this office, Attorney Cushman argues that the Department should have provided segregable portions of the responsive records, and that the Department failed to identify what responsive records it possessed.

Christine O’Donnell, Esq. SPR25/0478 Page 3 February 27, 2025 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 G. L. c. 41, § 97D, which provides: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276

Christine O’Donnell, Esq. SPR25/0478 Page 4 February 27, 2025 G. L. c. 41, § 97D. 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. 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. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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 Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its response, the Department stated: The Department is denying your request because the record is part of an open investigation and disclosure will prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records would harm the investigation because investigators are identifying and interviewing witnesses, gathering and analyzing data, assessing the evidence and making interim

Christine O’Donnell, Esq. SPR25/0478 Page 5 February 27, 2025 conclusions. Disclosure of the records would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements … [T]herefore, disclosure of the requested record is not in the public interest … [P]roviding segregable portions of the requested record is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding this record in its entirety is necessary to prevent alerting suspects to the confidential investigatory techniques of law enforcement officials. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (f) claims made by the Department to withhold the responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Christine O’Donnell, Esq. SPR25/0478 Page 6 February 27, 2025 Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Lilly D. Cushman, Esq.