Walter Wuthmann v. Boston, City of - Police Department (SPR 20252062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2025 SPR25/2062 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).” I understand the Department assigned reference number B001271-050825 to this request. Previous Appeal This request was the subject of previous appeals. See SPR25/1494 Determination of the Supervisor of Records (June 4, 2025) and SPR25/1619 Determination of the Supervisor of Records (June 24, 2025). In my June 24th determination, I ordered the Department to clarify its claims under Exemption (a) of the Public Records Law for withholding responsive video footage. Subsequently, the Department responded on July 14, 2025. Unsatisfied with the Department’s response, Mr. Wuthmann petitioned this office, and this appeal, SPR25/2062, 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

Grace Jung SPR25/2062 Page 2 July 30, 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. Current Appeal In his appeal petition, Mr. Wuthmann contends, “none of the laws the department cited specifically mention bodycam footage or internal affairs records. It also remains unclear that even if certain portions of the footage are exempt, why the department couldn’t simply obscure faces/identifying information, as they have in the past.” The Department’s July 14th Response In its July 14, 2025 response, as in its earlier June 7, 2025 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 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.”

Grace Jung SPR25/2062 Page 3 July 30, 2025 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 July 14th 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: 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.

Grace Jung SPR25/2062 Page 4 July 30, 2025 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 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 July 14th response, under the statutes cited above, the Department argues the following: The Department stands by its response but is providing additional information herein in response to the Supervisor’s Determination Order. The Department is denying your request pursuant to Exemption A of the Public Records Law because the records requested relate to juveniles. Because these records relate to juveniles they are not public. . . . The Department cited various statutes that protect the identity of juveniles and records involving juveniles from public disclosure. In its previous response, the Department cited the following statutes G.L. c. 41 § § 98F, 38, 60A, and 65. These statutes protect the identity of juveniles and expressly make records or proceedings involving juveniles nonpublic. These statutes show an intent by the state legislature to protect the juvenile population so that this population is not burdened and does not suffer collateral damage to their reputation in the future by incidents that occurred in their youth. The second part of Exemption A allows for an exemption by necessary implication. Because these statutes expressly exempt juvenile records and proceedings from public disclosure, it follows that by necessary implication, the requested records are also exempt because they relate to juveniles. Therefore, the requested records are records that are exempt under

Grace Jung SPR25/2062 Page 5 July 30, 2025 Exemption A. . . . There is no way to redact the footage without jeopardizing the identity of the juveniles. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (a) claims made by the Department to withhold the responsive video footage, 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 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.

Grace Jung SPR25/2062 Page 6 July 30, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Walter Wuthmann