Live Boston v. Department of State Police (SPR 20250873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2025 SPR25/0873 Joshua D. Reilly, Esq. Legal Counsel Office of the Chief Legal Counsel Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Reilly: I have received the petition of Live Boston (requestor) appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2025, the requestor sought video recordings, booking images, and arrest reports “… related to the arrest of the Massachusetts State Trooper who was taken into custody while on duty in Western Massachusetts.” The Department provided a response on March 28, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/0873, 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. 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

Joshua D. Reilly, Esq. SPR25/0873 Page 2 April 4, 2025 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 March 28th Response In its March 28, 2025 response, the Department informed the requestor that it was withholding all responsive reports and video recordings in their entirety, pursuant to Exemption (f) of the Public Records Law. Current Appeal In the March 31, 2025 petition to this office, the requestor claimed that the Department had failed to meet its burden under Exemption (f). The requestor further stated that “… the investigatory exemption must be evaluated on a case-by-case basis, and must demonstrate actual, not speculative, harm to law enforcement operations.” 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 March 28th response, the Department stated: [T]his incident remains the subject of an ongoing internal affairs investigation. In light of the pending investigation, the record(s) you seek are not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f) which specifically

Joshua D. Reilly, Esq. SPR25/0873 Page 3 April 4, 2025 exempts from public disclosure 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. See Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. The Department is compelled to conduct a thorough and objective investigation this incident. There is an interest in preserving the integrity of the investigation. Although the Department indicates that there is an ongoing investigation, it is unclear how the responsive records, in their entirety, can be withheld under Exemption (f). Also, the Department did not 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. 281, 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 the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. The requestor 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: Live Boston