William Manka v. Burlington, Town of - Police Department (SPR 20251449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1449 Kate Curtis-Bozio Records Administrative Assistant Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Ms. Curtis-Bozio: I have received the petition of William Manka appealing the response of the Burlington 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 May 20, 2025, Mr. Manka requested the following: [1] Bodycam and other footage (e.g., surveillance) of responding officers to the 5/19/2025 stabbing/domestic incident at Extended Stay America[;] [2] Police Reports or other physical records of the 5/19/2025 stabbing/domestic incident at Extended Stay America[;] [3] All forms of police communication (video, audio, or written) of the 5/19 stabbing/domestic incident at Extended Stay America[.] The Department responded on May 21, 2025. Unsatisfied with the Department’s response, Mr. Manka petitioned this office and this appeal, SPR25/1449, 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). 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

Kate Curtis-Bozio SPR25/1449 Page 2 June 2, 2025 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 May 21st Response In its May 21, 2025 response, the Department identified a specific incident report and cited G. L. c. 41, § 97D, as it operates through Exemption (a), as well as Exemption (f) of the Public Records Law to withhold the responsive record. Current Appeal In his appeal petition, Mr. Manka states, “…I am now not requesting any communications between police officers and victims, nor any identifying information related to the victim(s). I am solely seeking: [b]ody-worn camera (BWC) footage from responding officers; and [t]he police report, redacted as needed to comply with statutory confidentiality requirements.” Mr. Manka also argues that G. L. c. 41, § 97D, as it operates through Exemption (a), “does not authorize the blanket withholding of all records related to such incidents…” and that “Exemption (f)... should not bar release… non-exempt portions of records must be released…” 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Kate Curtis-Bozio SPR25/1449 Page 3 June 2, 2025 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. G. L. c. 41, § 97D provides in relevant part: 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… G. L. c. 41, § 97D. In its May 21, 2025 response, the Department states under Exemption (a): The records requested contains information related to a domestic assault between two family and household members (as defined in section 1 of chapter 209A) that resulted in charges filed. This record contains information that is prohibited from public release under M.G.L c.41 Section 97D… As you are not the victim in the incident and have not been legally authorized by the victim in any capacity to obtain such information on their behalf, we cannot honor your request. As a result, such information must be withheld under the law. Based on the information provided in the Department’s response and Mr. Manka’s appeal petition, and where the incident report is restricted from disclosure in its entirety by the Legislature under G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law, I find that the Department has met its burden to withhold the incident report. 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.

Kate Curtis-Bozio SPR25/1449 Page 4 June 2, 2025 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. 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. Under Exemption (f), the Department stated: Although the active investigation has concluded, criminal prosecution remains pending, and the records you are requesting are integral to that prosecution. Exemption (f) is designed not only to protect investigatory integrity but also to preserve the fairness of criminal proceedings. In this context, disclosing the requested records prior to trial may interfere with the defendant’s constitutional right to due process and a fair trial by an impartial jury. Public dissemination of facts, witness statements, or allegations contained in police reports— especially when those materials have not yet been tested in court—poses a risk of: Prejudicing potential jurors, who may form impressions about the defendant’s guilt or innocence based on incomplete or disputed information; Chilling witness cooperation, especially where voluntary witnesses provided statements with an expectation of limited exposure prior to testimony; Undermining the court’s control over the timing, manner, and completeness of evidence disclosure through the formal rules of criminal procedure… Where the Department has met its burden to withhold the incident report pursuant to G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law, I decline to opine on the applicability of Exemption (f) to the incident report.

Kate Curtis-Bozio SPR25/1449 Page 5 June 2, 2025 Based on the Department’s response, however, it is unclear whether the Department possesses additional records responsive to the request other than the identified incident report. Specifically, the Department must clarify whether it possesses any “[b]odycam and other footage (e.g., surveillance) of responding officers.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exists, the Department must either provide the records or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. Conclusion Accordingly, the Department is ordered to provide Mr. Manka 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. Mr. Manka 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: William Manka