Mass Accountability Network v. Canton, Town of - Police Department (SPR 20251062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2025 SPR25/1062 Sergeant Joe Silvasy Canton Police Department 1492 Washington Street Canton, MA 02021 Dear Sergeant Silvasy: I have received the petition of Mass Accountability Network (requestor) appealing the response of the Canton 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 March 19, 2025, the requestor sought, ...the report taken in the hall at Canton Police Station, the person making the report was in a Grey Jeep. He showed up to the Canton Police Department at approximately 11:26 or March 18th, 2025, and made a claim that someone was following him. I would like all police reports, any phone calls that were possibly made between 11:00 am and 12 pm, any radio transmissions and any bodycam footage attached to this report of this report being taken. The Department responded on April 10, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/1062, 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Sergeant Joe Silvasy SPR25/1062 Page 2 May 1, 2025 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 April 10th response In its April 10, 2025 response, the Department produced an Incident Report and body camera footage, and cited Exemption (f) of the Public Records Law in support of the redactions made to the body camera footage. Current appeal In its appeal, the requestor stated, On March 18, 2025, I visited Canton Center to document public establishments named in the investigation of the death of [identified] Boston Police Officer namely, CF McCarthy’s and The Waterfall. D&E Pizza, owned by [identified] Town Selectman, sits adjacent to CF McCarthy’s. I documented the placement of outdoor surveillance cameras at that location, which are at the center of prior legal controversy. During my documentation, [an identified individual] [who was] [an identified individual’s] son, also a named witness in the O’Keefe case and identified as a third-party suspect by defense counsel—arrived and engaged in conduct reasonably perceived as suspicious and/or intimidation. It appeared that he was opening D&E Pizza as it was close to 11:00 am and that is their opening time. Instead of opening the business, he started staring me down in my car, and went back to his jeep, then following me by car across town. I later overheard over on my scanner that someone was in the lobby of the Canton Police Department wishing to report being followed—this turned out to be [an identified individual], who submitted a report that appears to misrepresent the events. Shortly thereafter, [an identified individual] himself drove a black Ford Edge through a restricted police only access point behind the Canton Police Department, an action that raises questions about inappropriate access or influence. These events, coupled with the known familial ties (... works for Canton PD), give rise to public concern about possible preferential treatment or misuse of governmental authority. All emails, attachments, or security camera stills shared between [an identified individual] and the Canton Police Department regarding this matter must be disclosed.

Sergeant Joe Silvasy SPR25/1062 Page 3 May 1, 2025 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.” See Reinstein, 378 Mass. 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. 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. et. al. 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. In its response, the Department stated, “I have sent you a link to Motorolla’s Evidence Library. This will allow you to view the body camera footage that was requested. Per Public Records Law, redactions were made to this BWC footage as those statements are exempt under Exemption (f). This exemption permits the withholding of information related to witness statements, as releasing such details could deter future witnesses from coming forward. Withholding the statement(s) protects the integrity of the witness’s testimony and prevents potential harassment or intimidation.” Although portions of the responsive body camera footage may fall under Exemption (f), the Department has not met its burden regarding the redactions to the bodycam footage.

Sergeant Joe Silvasy SPR25/1062 Page 4 May 1, 2025 Specifically, the Department has not shown how the bodycam footage cannot be redacted in order to protect the identities of voluntary witnesses. See G. L. c. 66, § 10(a); 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. If the requestor wishes to submit an additional public records request to the Department seeking “[a]ll emails, attachments, or security camera stills ... regarding this matter,” and is unsatisfied with the response, the requestor may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). 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 (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. 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: Mass Accountability Network