Mass Accountability Network v. Swampscott, Town of - Police Department (SPR 20253372)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3372 Michael J. Frayler Administrative Lieutenant Swampscott Police Department 531 Humphrey Street Swampscott, MA 01907 Dear Lieutenant Frayler: I have received the petition of Mass Accountability Network (requestor) appealing the response of the Swampscott 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 October 21, 2025, the requestor sought “any and all bodycam footage for the arrest of [an identified individual], for attacking a man in an inflatable Trump Costume on Kings Beach walkway, 2025.” The Department responded on November 7, 2025. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR25/3372, was opened as a result. While this appeal was pending, the Department provided a supplemental response on November 24, 2025. 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

Michael J. Frayler SPR25/3372 Page 2 November 26, 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. The Department’s November 7th and November 24th Responses In its November 7, 2025 response, the Department cited Exemption (f) of the Public Records Law to withhold the responsive records. In its supplemental response on November 24, 2025, the Department stated: The footage of the assault that Mass Accountability Network is referring to was not recorded live on any police body cameras. The footage recorded by officers on scene deals primarily with interviewing the victim, voluntary witnesses, the suspect and his subsequent arrest. The Swampscott Police body camera footage was turned over to the Essex County District Attorney’s office as evidence in this ongoing criminal case and refer to the reasoning in our initial response for not releasing the footage at this time. Current Appeal In the appeal petition, the requestor argued, “[t]he Swampscott police are claiming releasing this bodycam footage with interfere with their investigation [sic]. They never explained how this would do as they claim, as the video of the assault has already been viewed millions of times.” 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. Police Comm’r of Boston, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case

Michael J. Frayler SPR25/3372 Page 3 November 26, 2025 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. Under Exemption (f), the Department stated: …the Police Department is unable to provide the body worn camera footage you are seeking in light of the active and ongoing investigation and District Attorney’s prosecution of the case pursuant to Exemption (f) of the Public Records Law. Specifically, the District Attorney’s Office is currently handling this active law enforcement matter and such police recordings relate directly to said ongoing judicial proceedings, which have not yet been resolved. Therefore, at this juncture, after individualized review of the recordings, the premature disclosure of such body worn camera footage could impact such law enforcement matters,

Michael J. Frayler SPR25/3372 Page 4 November 26, 2025 including judicial proceedings, at this time, and cannot be provided given that this matter has been referred to and is being handled by the District Attorney’s Office. Although the Department claims that there is an open investigation regarding a matter related to the responsive records, it is unclear how the records may be withheld in their entirety under Exemption (f). While the identifying information of voluntary witnesses and complainants may be withheld, it is uncertain from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department has also not demonstrated how disclosure of any segregable portion of the responsive record “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). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. 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 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: Mass Accountability Network