Bay State Body Cam v. Boston, City of - Police Department (SPR 20251947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2025 SPR25/1947 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 the following records related to the January 30, 2025 arrest of an identified individual: [1] Body-worn camera footage from the primary officer(s) involved, beginning shortly before first contact with the suspect and continuing through to the moment the suspect is placed in to the police vehicle. [2] The booking photo of [an identified individual], the individual arrested in connection with this incident. Prior Appeal This request was the subject of a prior appeal. See SPR25/1656 Determination of the Supervisor of Records (June 17, 2025). In my June 17th determination, I found that the Department had not met its burden to withhold responsive records in their entirety pursuant to Exemption (f) of the Public Records Law. The Department responded on June 17, 2025, assigning the request reference number R001923-041325. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/1947, was opened as a result. 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. SPR25/1947 Page 2 July 17, 2025 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 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 June 17th Response In its June 17, 2025 response, the Department reiterated its position that the responsive records were exempt from disclosure in their entirety pursuant to Exemption (f) of the Public Records Law. Current Appeal In the July 7, 2025 petition to this office, the requestor objected to the Department’s response as insufficient. 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

Christine O’Donnell, Esq. SPR25/1947 Page 3 July 17, 2025 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.” 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 June 17th response, the Department stated: The Department is denying your request at this time because the records are part of an open and ongoing investigation and criminal proceedings; therefore, disclosure will impede an ongoing investigation and will also prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records at this time would interfere with enforcement proceedings. The records are part of the investigation of this incident and disclosure at this time would prejudice the possibility of effective law enforcement that such disclosure is not in the public interest. Disclosure at this time would prejudice effective law enforcement because officers are in the process of gathering, reviewing and analyzing evidence as well as identifying and interviewing witnesses. Disclosure of these records would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements. Encouraging citizens and prospective witnesses to come forward and speak with police and the ability of the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult. The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. If prospective witnesses do not

Christine O’Donnell, Esq. SPR25/1947 Page 4 July 17, 2025 come forward, the investigatory process will be hampered. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement which is not in the public interest. Further, releasing these records at this time may influence potential witnesses thereby compromising the investigatory process. To protect the integrity of the investigative process, information relating to confidential investigative techniques, procedures, and sources, and to maintain the ability to foster cooperation with the public, the Department is denying your request at this time. These records are part of an ongoing investigation and its disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested record is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts as release of these records would discourage individuals to contact the police department … Withholding the records in their entirety is necessary at this time to prevent interference with an ongoing investigation and law enforcement proceedings. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Department to withhold the responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal

Christine O’Donnell, Esq. SPR25/1947 Page 5 July 17, 2025 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Bay State Body Cam Sergeant John Boyle