EWU Media LLC v. Provincetown, Town of- Police Department (SPR 20252244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2025 SPR25/2244 Barbara Peters Records Clerk Provincetown Police Department 2 Jerome Smith Road Provincetown, MA 02657 Dear Ms. Peters: I have received the petition of EWU Media LLC (requestor) appealing the response of the Provincetown 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 July 9, 2025, the requestor sought the following: NAME (of suspect[s]): Three unidentified white males (estimated ages 20–30) . . . INCIDENT: Alleged hate crime involving assault on a man by three men who used a homophobic slur in Provincetown DATE of INCIDENT: June 30, 2025 (between 1:00 a.m. and 2:00 a.m.) DATE of BIRTH (of suspect[s]): NA LOCATION: Provincetown, Barnstable County, Massachusetts ADDRESS for 911: East end of Bradford Street near Howland Street, Provincetown, Massachusetts TIME of 911 CALL: Afternoon of June 30, 2025 REQUESTING: All interrogation footage filmed in relation to the case in video format (in audio if the interview was not filmed), all interview footage filmed in relation to the case in video format (in audio if the interview was not filmed), all witness interviews related to the case in video format (audio if the interview was not filmed), crime scene photos, crime scene videos, evidence photos, evidence videos, all 911 calls recorded in relation to the case in audio format, police reports, all body camera footage recorded in relation to the case in video format, all dash camera footage filmed in relation to the case in video format, all CCTV/surveillance footage related to the case in video format, all video recordings and audio recordings related to the case, and all phone evidence related to the case. The Department responded on July 10, 2025. Unsatisfied with the Department’s response, the requestor petitioned this office, and this appeal, SPR25/2244, was opened as a 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

Barbara Peters SPR25/2244 Page 2 August 14, 2025 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 10th Response In its July 10, 2025 response, the Department states that it is withholding a responsive report pursuant to 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 of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Barbara Peters SPR25/2244 Page 3 August 14, 2025 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. In its July 10th response, under Exemption (f), the Department argues the following: [The Department] was able to locate the report in our database. However, with respect to your request, the Department intends to withhold the requested record. The Department intends to withhold the record due to the applicability of the following exemption and the reasons set forth below: . . . While this exemption is not a blanket exemption it applies to such information, the disclosure of which would prejudice investigative efforts. It applies to information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants. This incident is still an open and active investigation. As a result, the record must be withheld under the law. Based on the Department’s response, although portions of the responsive report may fall under Exemption (f), it is uncertain how the record can be withheld in its entirety. For example, it is unclear how information such as the date and time of the incident, or the name of the responding officers would prejudice an ongoing investigation or prosecution. The Department must explain whether the report can be redacted so that segregable portions of the record can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 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). 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 further 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: EWU Media LLC