Michaela Roberta Martin Strout v. Boston, City of - Police Department (SPR 20250689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2025 SPR25/0689 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 Michaela Strout 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 February 10, 2025, Ms. Strout requested “[a]ny and all internal affairs records related to or involving [an identified individual].” Previous Appeal This request was the subject of a previous appeal. See SPR25/0557 Determination of the Supervisor of Records (February 28, 2025). In my February 28th determination, I closed SPR25/0557 in light of the Department providing a response on February 28, 2025. Unsatisfied with the Department’s response, Ms. Strout petitioned this office, and this appeal, SPR25/0689, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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. SPR25/0689 Page 2 March 21, 2025 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 February 28th Response In its February 28, 2025 response, the Department claimed Exemption (f) of the Public Records Law to withhold the requested records in their 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 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. 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. Under Exemption (f), the Department states that it is “is denying your request pursuant to Exemption F of the Public Records Law because the records requested are part of an open and ongoing investigation.” The Department further opines the following in support of its claim: The Department is denying your request at this time because the records are part of open Internal Affairs Department (“IAD”) investigations. Disclosure of the records at this time would prejudice future law enforcement because investigators are interviewing witnesses, analyzing information, and drawing initial conclusions. Disclosure of the requested records at this time would interfere with enforcement proceedings. The records are part of an internal investigation and

Christine O’Donnell, Esq. SPR25/0689 Page 3 March 21, 2025 disclosure at this time would prejudice the possibility of effective law enforcement that such disclosure is not in the public interest. Releasing this record at this time may influence potential witnesses thereby compromising the investigatory process. To protect the integrity of the investigative process, information relating to confidential investigative techniques, procedures, and sources, and to maintain the ability to foster cooperation with the public, the Department is denying your request at this time. These records are part of an ongoing investigation and its 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. . . . [P]roviding segregable portions of the requested records are not possible without revealing confidential investigative techniques, procedures, or sources of information. Withholding this record in its entirety is necessary at this time to prevent interference with internal investigatory proceedings. Disclosure at this time would prejudice effective law enforcement and is not in the public interest. Once the IAD investigation is concluded, the Department may reevaluate its position if you wish to make another public records request. 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 Exemption (f). Specifically, the Department must clarify whether the individual identified in Ms. Strout’s request is part of the Internal Affairs investigation. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, the Department did not demonstrate how disclosure of any segregable portion of the responsive record “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). Id. 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. Further, I find the Department must identify the records in its possession that are responsive to the request. To deny access to a record or portion of 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). Consequently, the Department must identify the records it withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Ms. Strout 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. Ms. Strout may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Christine O’Donnell, Esq. SPR25/0689 Page 4 March 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michaela Strout