Anthony Dew v. Boston, City of - Police Department (SPR 20252020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2025 SPR25/2020 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 Anthony Dew 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 27, 2025, Mr. Dew requested: [1] Any and all BPD Reports # 040235090, #050476855, and DNA profiles with these report # & chain of custody; [2] Any and all BPD Report’s# 242076417 & DNA profile chain of custody; [3] Any and all photo arrays of [an identified individual] use on date of September 7, 2024 & September 8, 2024 & September 9, 2024 & September 10, 2024 at BMC by BPDOfficers, or Det, or Sgt Det; [4] Any and all chain of custody of all evidence; [5] The DNA profile of arrestees [an identified individual] uploaded to CODIS during the booking process on September 7, 2024; [6] The DNA profile crime scene samples of [an identified individual] uploaded to CODIS on September 7, 2024 after they have been analyzed by a forensic laboratory; [7] The DNA profile of [an identified individual] convicted offenders uploaded to CODIS in the year 2007-2008; [8] Do BPD has the DNA Date Bank yes or no. Previous Appeal This request was the subject of a previous appeal. See SPR25/1707 Determination of the Supervisor of Records (June 24, 2025). In my June 24th determination, I ordered the Department to provide Mr. Dew with a response to his request. The Department provided a response on July 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. SPR25/2020 Page 2 July 25, 2025 3, 2025. Unsatisfied with the Department’s response, Mr. Dew petitioned this office and this appeal, SPR25/2020, 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 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 July 3rd Response In its July 3, 2025 response, the Department withheld responsive records in their entirety citing Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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. SPR25/2020 Page 3 July 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.” 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its July 3rd response, the Department states: The Department has located records responsive to your request. However, the Department is denying your request pursuant to Exemption (f) because the records you are requesting are related to an ongoing open investigation and its release at this time will prejudice effective law enforcement…. The requested records are investigatory materials and the release of these records at this time would interfere with the investigative process and would reveal confidential investigative techniques.

Christine O’Donnell, Esq. SPR25/2020 Page 4 July 25, 2025 The requested records are part of the investigation of these incidents 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…. 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. A records custodian is obligated to provide segregable portions of records where possible.… However, providing segregable portions of the requested records is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding this record in its entirety is necessary at this time to prevent interference with an ongoing investigation and law enforcement proceedings. Disclosure at this time would prejudice effective law enforcement and is not in the public interest. Once the investigation is concluded, the Department may reevaluate its position if you wish to make another public records request. Part 8 of your request is a question and not a request for records. The Public Records Law only applies to records. Records access officers are not required by the Public Records Law to answer questions or create a record in response to a request. Although the Department states that the records pertain to an active investigation, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (f).

Christine O’Donnell, Esq. SPR25/2020 Page 5 July 25, 2025 Conclusion Accordingly, the Department is ordered to provide Mr. Dew with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Anthony Dew