Robert LeBlanc v. Boston, City of - Police Department (SPR 20251701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2025 SPR25/1701 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 Robert LeBlanc 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 October 15, 2024, Mr. LeBlanc requested “… any and all public records in [the Department’s] possession concerning the murder investigation of [an identified individual] in East Boston, Massachusetts on November 6, 1975, and the subsequent arrest and prosecution of [an identified individual] in this matter.” Prior Appeal This request was the subject of a prior appeal. See SPR24/3023 Determination of the Supervisor of Records (November 15, 2024). In my November 15th determination, I ordered the Department to clarify whether it possessed records responsive to the request. The Department provided a response on April 24, 2025, and assigned the request reference number B003087- 102524. Unsatisfied with the response, Mr. LeBlanc petitioned this office and this appeal, SPR25/1701, 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

Christine O’Donnell, Esq. SPR25/1701 Page 2 June 25, 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 April 24th Response In its April 24, 2025 response, the Department provided responsive records. Portions of the responsive records were redacted pursuant to Exemptions (c) and (f) of the Public Records Law. Current Appeal In his June 11, 2025 petition to this office, Mr. LeBlanc contended that the Department’s redactions were overbroad. Mr. LeBlanc further contended that Exemption (f) did not apply to the responsive records, where the underlying events occurred in 1975 and certain information has already been publicly disclosed. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal

Christine O’Donnell, Esq. SPR25/1701 Page 3 June 25, 2025 nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its April 24th response, the Department stated: The responsive records contain information regarding specific individuals, the disclosure of which would be an unwarranted invasion of privacy. The Department is redacting witness names, dates of birth, places of employment, home addresses, phone numbers and other personal identifying information. While the public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner, the public’s interest in obtaining the names of civilian witnesses and other identifying information does not substantially outweigh seriousness of any invasion of privacy. Id. Therefore, the Department is redacting personal identifying information from the responsive records. The Department did not redact out the names of complainants or police department personnel. Where, for the reasons stated below, the Department may withhold the identifying information of voluntary witnesses under Exemption (f) of the Public Records Law, I find that it is unnecessary to opine on the applicability of Exemption (c) to the responsive records. 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

Christine O’Donnell, Esq. SPR25/1701 Page 4 June 25, 2025 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. 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. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its April 24th response, the Department stated: The Department is redacting witness names and other identifying information pursuant to Exemption (f) in order to maintain the confidentiality of witnesses … To protect the confidentiality of individuals and to prevent a chilling effect of future law enforcement efforts, the Department is redacting the names of civilian witnesses, portions of statements of witnesses, and other identifying information. The Department also redacted handwritten notes of investigative officials that contain initial observations and thoughts of investigative officials. Disclosure of this information would prejudice future law enforcement efforts; therefore, disclosure of the requested record in not in the public interest. To the extent that the responsive records contains the identifying information of voluntary witnesses, the Department may permissibly redact such portions pursuant to Exemption (f) of the Public Records Law. However, it is unclear how disclosure of the handwritten notes of investigative officials “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required to redact records 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 this matter.

Christine O’Donnell, Esq. SPR25/1701 Page 5 June 25, 2025 Conclusion Accordingly, the Department is ordered to provide Mr. LeBlanc 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. Mr. LeBlanc 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: Robert LeBlanc