William Thong v. Peabody, City of - Police Department (SPR 20253258)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 20, 2025 SPR25/3258 Captain Douglas S. Marcus Records Access Officer Peabody Police Department 6 Allens Lane Peabody, MA 01960 Dear Captain Marcus: I have received the petition of William Thong, appealing the response of the Peabody 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 September 30, 2025, Mr. Thong requested, “the internal investigation report for [f]ormer [identified] Peabody Police Officer from the incident on 5/21/25, which was investigated by [an identified individual].” On October 14, 2025, the Department provided a response. Unsatisfied with the response, Mr. Thong petitioned this office and this appeal, SPR25/3258, 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. 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

Captain Douglas S. Marcus SPR25/3258 Page 2 November 20, 2025 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. Thong contends: There is a clear inconsistency between Peabody Police’s representation to POST that the matter had been disposed of and its assertion under the Public Records Law that the same investigation remains open. Given that: • The involved officer has resigned, • The POST Commission has closed its review, and • Over 150 days have elapsed with no apparent investigative activity, I respectfully submit that Exemption (f) no longer applies, as there is no active investigative effort that could be compromised by disclosure. The department should therefore release the requested internal affairs records, subject only to appropriate redaction of any legitimately exempt information (such as personal data or witness identifiers). The Department’s October 14th Response In its October 14, 2025 response, the Department stated that “[t]he department is in possession of records related to an internal investigation related to this specific request,” and the Department cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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

Captain Douglas S. Marcus SPR25/3258 Page 3 November 20, 2025 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.” 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 response, the Department asserted: The department has determined that this internal investigation has not concluded. Due to this the department has determined that it will not be releasing these records as there are mitigating factors that could result in the department being able to complete this investigation in the future. The release of these records could compromise investigative efforts if disclosed as the department is withholding

Captain Douglas S. Marcus SPR25/3258 Page 4 November 20, 2025 these records according to the Massachusetts Records Law Exemption (f). On November 7, 2025, the Department provided a further response to an attorney at the Public Records Division explaining the following: The department determined that the records related to this investigation are to not be released due to the aforementioned incident is still considered an open investigation. The department has not been able to complete this investigation due to the aforementioned officer no longer being employed at our department. The release of these records could compromise any investigative efforts if disclosed as facts of this incident still may come forward as part of the internal investigation. If there is any future criminal prosecution to be brought forward the pre-release of these records may prevent this from occurring due to a prejudice to investigative efforts that are currently ongoing (M.G.L. Public Records Exemption (f)). Although the Department claims that there is an open investigation, it is unclear how the investigation remains ongoing and how the requested records are part of the ongoing investigation. Also, it is not clear how disclosure of the internal investigation report would disclose confidential investigative techniques, procedures or sources of information. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate 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). See 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). The Department must clarify. Conclusion Accordingly, the Department is ordered to provide Mr. Thong with a response to the 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. Mr. Thong may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Captain Douglas S. Marcus SPR25/3258 Page 5 November 20, 2025 Sincerely, Manza Arthur Supervisor of Records cc: William Thong