Walter Wuthmann v. Boston, City of - Police Department (SPR 20251619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2025 SPR25/1619 Grace Jung Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Walter Wuthmann, of WBUR, 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 May 8, 2025, Mr. Wuthmann requested “[t]he body camera footage worn by [an identified officer] on February 21, 2022 from 5 p.m. until 12 a.m. (midnight).” Previous Appeal This request was the subject of a previous appeal. See SPR25/1494 Determination of the Supervisor of Records (June 4, 2025). In my June 4th determination, I ordered the Department to provide Mr. Wuthmann with a response to the request. Subsequently, the Department responded on June 4, 2025. Unsatisfied with the Department’s response, Mr. Wuthmann petitioned this office, and this appeal, SPR25/1619, 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 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

Grace Jung SPR25/1619 Page 2 June 24, 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 City’s June 7th Response In its June 7, 2025 response, the City cites numerous statutes as they operate through Exemption (a) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a). 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, 154 (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. Children and Youthful Offender Statutes In its June 7th response, the Department cites G. L. c. 41, § 98F; G. L. c. 119, § 60A; G. L. c. 119, § 38; and G. L. c. 119, § 65, which provide in pertinent parts as follows:

Grace Jung SPR25/1619 Page 3 June 24, 2025 Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. G. L. c. 41, § 98F. The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119, § 60A. All hearings under sections 1 to 38A, inclusive, except those related to court orders to not resuscitate or to withdraw life-sustaining medical treatment for children in the custody of the department under a care and protection order, shall be closed to the general public. It shall be unlawful to publish the names of persons before the court in any closed hearing. G. L. c. 119, § 38. Courts shall designate suitable times for the hearing of cases of children under 18

Grace Jung SPR25/1619 Page 4 June 24, 2025 years of age, which shall be called the juvenile session, for which a separate docket and record shall be kept. Said session shall be separate from that for the trial of criminal cases, shall not, except as otherwise expressly provided, be held in conjunction with other business of the court, and shall be held in rooms not used for criminal trials; and in places where no separate juvenile courtroom is provided, hearings, so far as possible, shall be held in chambers. The court shall exclude the general public from juvenile sessions admitting only such persons as may have a direct interest in the case, except in cases where the commonwealth has proceeded by indictment. A complaint under section sixty-three may be heard in such juvenile session. G. L. c. 119, § 65. In its June 7th response, under the statutes cited above, the Department argues the following: [R]ecords are exempted by necessary implication under G.L. c. 41, §98F which expressly provides that entries on police logs concerning arrests of a person under the age of 18 shall be kept separately, shall not be a public record nor shall such entry be disclosed to the public. While the record you are seeking is not an entry in the daily police log and does not relate to an arrest of a juvenile, the record you are seeking involves a juvenile; therefore, by necessary implication, this record is not a public record and is exempt. The Care and Protection statutes in the General Laws govern proceedings involving children and also prohibit information for persons under the age of 18 from public disclosure. See G.L. c. 119 et al. Specifically, section 38 requires that proceedings involving persons under 18 be closed to the public and prohibits the publication of names of persons under 18 except when the hearing involving court orders relating to do not resuscitate or to withdraw life-sustaining medical treatment for children in the custody of the department under a care and protection order. G.L. c.119, §38. Because this statute prohibits the publication of names and the closure of most hearings to the public for persons under the age of 18, it is clear that the intent is to protect the identities of this vulnerable population. Similarly, body camera footage of juveniles requires the same protection that is required under c. 119. Id. Therefore, body camera footage of juveniles is exempt under statutory Exemption A and is prevented from public disclosure Further, §§60A and 65 of c. 119 prohibit certain types of juvenile records from public disclosure. Specifically, §60A provides that [“]records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection

Grace Jung SPR25/1619 Page 5 June 24, 2025 except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney[”] G.L. c. 119, §60A. The language of this statute contemplates that the identity of juveniles be protected from public inspection except in very limited circumstances and that juvenile records should only be available to certain individuals and not the public at large. This is significant because it shows that the identity of the juveniles is not subject to public disclosure. Section 65 establishes requirements for juvenile sessions and the presence of minors and requires courts to keep separate dockets and records for such sessions. G.L. c. 119, §65. This is another example where proceedings and information involving persons under 18 is not open to the public. In Massachusetts, Juvenile Court delinquency hearings and records are not open to the public with the exception of youthful offender cases. The records of juveniles are more protected than adult criminal records. Because the courts in Massachusetts close juvenile delinquency hearings and records to the public except for youthful offender cases shows that the courts are protecting juveniles from public scrutiny and stigma except in limited circumstances. By allowing youthful offender cases to be open to the public, the statute contemplates that the public has a right to know in limited circumstances but not in all cases involving juveniles. The fact that the courts close most juvenile hearings and records to the public shows the importance of protecting the reputation, information, and identity of individuals under the age of 18. The law that requires police logs concerning the arrests of individuals under the age of 18 to be kept separately and specifically stating that such records are not public records along with the laws that require juvenile court proceedings and records to be closed to the public and not subject to public records show the intent to protect this population. Disclosing information on persons under 18 could cause unreasonable harm and personal embarrassment. The previously mentioned statutes by necessary implication exempt the body worn camera footage from public disclosure pursuant to Exemption A in order to protect persons under the age of 18. Based on the information provided in the Department’s June 7th response, it is unclear how the withheld body camera footage constitutes the types of records contemplated in the statutes cited by the Department. The Department must clarify this. Further, although portions of the video footage may fall under the statutes cited above, it is unclear how the video footage may be withheld in its entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in

Grace Jung SPR25/1619 Page 6 June 24, 2025 nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Wuthmann 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. Wuthmann may further 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: Walter Wuthmann