Bay State Body Cam v. Boston, City of - Police Department (SPR 20251652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2025 SPR25/1652 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 Bay State Body Cam (requestor) 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 April 13, 2025, the requestor sought: …specific records related to the March 11, 2025 incident involving a ShotSpotter activation at …Warren Street in Roxbury, as outlined in the Boston Police Department’s public release titled “ShotSpotter Activation in Roxbury Leads Officers to Gunshot Victim and Arrest of Two Juvenile Suspects.” …[W]e are requesting the following: Body-worn camera footage from the primary officer(s) involved, beginning shortly before first contact with each suspect and continuing through to the moment each suspect is placed into the police vehicle… The requester stated further, “[w]e understand that juvenile records are subject to confidentiality protections under Massachusetts law. We request that any responsive records be provided with appropriate redactions to protect the juveniles’ identities, as required by law…” The Department responded on April 16, 2025, assigning the request reference number R001921-041325. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR25/1652, 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 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. SPR25/1652 Page 2 June 25, 2025 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. 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 16th Response In its April 16, 2025 response, the Department cited G. L. c. 41, § 98F and G. L. c. 119 as they operate through Exemption (a) of the Public Records Law to withhold the requested records. Current Appeal In its appeal petition, the requestor argues the Department’s response is deficient for the following reasons: [1] Exemptions Must Be Narrowly Construed… [2] Footage Is Presumptively Public and Can Be Redacted… [3] Exemption (a) Misapplied by “Necessary Implication”… [4] Significant Public Interest in Disclosure… 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Christine O’Donnell, Esq. SPR25/1652 Page 3 June 25, 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, § 98F provides in pertinent part: 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. Under G. L. c. 41, § 98F, the Department argued: 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. In its response, the Department also cited multiple sections of G. L. c. 119, which concerns the protection and care of children, and proceedings against them. Under various sections of G. L. c. 119, the Department argues:

Christine O’Donnell, Esq. SPR25/1652 Page 4 June 25, 2025 Because [these statutes] prohibit 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…The law that requires police logs concerning the arrests of individuals under the age of 18 to be kept separately… 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 Department’s response, it is unclear how the body camera footage, in its entirety, may be withheld under G. L. c. 41, § 98F as it operates through Exemption (a) of the Public Records Law. Where the Department states that requested records are “not an entry in the daily police log and does not relate to an arrest of a juvenile,” it is unclear how G. L. c. 41, § 98F necessarily implies that the body camera footage of the subject juveniles is exempt under Exemption (a). It is also unclear from the Department’s response how the body camera footage, in its entirety, may be withheld pursuant G. L. c. 119. Where the statutory scheme applies specifically to juvenile proceedings, it is unclear how the mentioned statutes by necessary implication exempt the body worn camera footage entirely under Exemption (a). Further, the Department must clarify whether it can redact exempt portions of the body camera footage to protect the confidentiality of the subject juveniles. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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 (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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Bay State Body Cam