Anthony Dew v. Boston, City of - Police Department (SPR 20253139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2025 SPR25/3139 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 Appeals This request was the subject of previous appeals. See SPR25/1707 Determination of the Supervisor of Records (June 24, 2025) and SPR25/2020 Determination of the Supervisor of Records (July 25, 2025). In my July 25th determination, I ordered the Department to identify the 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. SPR25/3139 Page 2 November 3, 2025 record(s) it has in its possession that it withheld under Exemption (f). The Department responded on October 6, 2025. Unsatisfied with the Department’s response, Mr. Dew petitioned this office and this appeal, SPR25/3139, 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 October 6th Response In its October 6, 2025 response, the Department cited G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law, to withhold the records responsive to Item 1 of the request. Regarding Items 2, 3, 4, 5, 6, and 7, the Department cited Exemption (f) of the Public Records Law to withhold all other responsive records in their entirety. Regarding Item 8, the Department stated, “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.” Current Appeal In his appeal petition, Mr. Dew objected to the entirety of the Department’s response, including the applicability of Exemptions (a) and (f).

Christine O’Donnell, Esq. SPR25/3139 Page 3 November 3, 2025 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, 54 (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.” 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. In its October 6, 2025 response, the Department cited G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233... G. L. c. 41, § 97D.

Christine O’Donnell, Esq. SPR25/3139 Page 4 November 3, 2025 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, 378 Mass. at 290 n.18. 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. Item 1 Regarding Item 1 of the request, under Exemption (a), the Department stated: Part 1 of your request is seeking… copies of two incident reports and DNA Profiles with chain of custody for those reports. The Department has located records responsive… however, the Department is denying this part of your request under Exemption (a) because G. L. c.41, § 97D. This statute protects Department records relating to the incidents identified in the statute in their entirety. As such, any matters listed in the statute are not deemed public and are protected by the Department in a manner that assures their confidentiality, pursuant to M.G.L. Ch. 41, §97D. The statute expressly states that such records

Christine O’Donnell, Esq. SPR25/3139 Page 5 November 3, 2025 are not public. The Department does not have discretion to release these records and is prohibited from doing so pursuant to M.G.L. c. 41, § 97D. Based on the information provided in the Department’s response, where the responsive records constitute reports that are restricted from disclosure in their entirety by the legislature under G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law, I find that the Department has met its burden withhold these reports from disclosure under Exemption (a). Items 2, 3, 4, 5, 6, and 7 Under Exemption (f), the Department stated: The Department is denying parts two through seven of your request at this time because the records are related to pending criminal proceedings; therefore, disclosure will prejudice future law enforcement efforts... Any disclosure of the records in parts two through seven would involve “investigatory materials necessity compiled out of 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.” The disclosure of these records would be prejudicial to effective law enforcement and the prosecution as these records may reveal the Commonwealth’s case before trial… [P]roviding segregable portions of the requested records is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding the records in their entirety is necessary at this time to prevent interference with a criminal proceeding. 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 parts two through seven of your request… Disclosure of these records would also have a chilling effect on future law enforcement efforts. Although the Department states that the responsive records concern pending criminal proceedings, the Department has not established how the responsive records may be withheld in their entirety under Exemption (f). Although the identifying information of voluntary witnesses and complainants may be withheld, it is unclear how all of the withheld records constitute confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. The Department has also not sufficiently demonstrated how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). The Department must clarify these matters.

Christine O’Donnell, Esq. SPR25/3139 Page 6 November 3, 2025 Item 8 Regarding Item 8 of the request, Mr. Dew is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Pursuant to the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Item 8 of Mr. Dew’s request constitutes a question, I find that the Department has no duty under the Public Records Law to answer such questions and has met its burden in responding to this portion of the request. 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 (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. Mr. Dew may 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: Anthony Dew