John T. Zogby v. Brookline, Town of - Police Department (SPR 20253613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2025 SPR25/3613 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of John T. Zogby, Esq., of the Law Office of John T. Zogby, appealing the response of the Brookline 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 November 9, 2025, Attorney Zogby requested, “[a]ll reports, documents, images, videos, audio recordings, witness statements, and files associated with the arrest and investigation into the death of [an identified individual] . . . , including any Brookline Police Department internal investigations, from the dates of July 5, 2025 to the present.” The Department responded on December 4, 2025. Unsatisfied with the Department’s response, Attorney Zogby petitioned this office, and this appeal, SPR25/3613, was opened as a result. While this appeal was pending, the Department provided additional information in an email to this office on December 8, 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 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

Amanda Williams SPR25/3613 Page 2 December 22, 2025 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 December 4th Response and December 8th Correspondence In its December 4, 2025 response, the Department provided seven pages of redacted records and claimed Exemption (c) of the Public Records Law in support of its redactions, and further claimed Exemption (f) to withhold additional responsive records, in their entirety. In its December 8, 2025 email to this office, a representative of the Department provided additional information regarding its claims under Exemption (f) for withholding additional responsive records. Current Appeal In his December 8, 2025 appeal, Attorney Zogby categorizes “[t]he response of the . . . Department . . . that records are being withheld due to an ongoing investigation by the Norfolk County District Attorney’s Office” as “not accurate.” He explains, “[a] [similar] request for public records was also sent to the Norfolk County District Attorney’s Office. The District Attorneys [sic] Office responded to the public records request and provided numerous records, videos and photographs.” He states, “[t]here was no mention in the District Attorney’s Office that any records were being withheld due to an ongoing investigation” and further contends, “the District Attorney’s office would not have provided the requested records if it was still conducting an investigation.” Upon review of the appeal file, it appears Attorney Zogby is not objecting to the redactions made under Exemption (c). In support of his arguments regarding the Department’s claims under Exemption (f), Attorney Zogby submits with his appeal a copy of a November 5, 2025 letter from the Norfolk County District Attorney’s Office. Upon review, it is my understanding that the November 5th letter constitutes the Norfolk County District Attorney’s Office response to the similar request Attorney Zogby describes in his appeal, as noted above. Additionally, it is my understanding that the Norfolk County District Attorney’s Office enclosed with its November 5th letter approximately 112 pages of records, as well as numerous videos, images, and audio files, with redactions. 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

Amanda Williams SPR25/3613 Page 3 December 22, 2025 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. 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 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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

Amanda Williams SPR25/3613 Page 4 December 22, 2025 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 December 4, 2025 response, under Exemption (f), the Department stated the following in support of withholding records responsive to Attorney Zogby’s request: Although the investigation of the initial incident by the Brookline Police Department has been completed, an investigation by the District Attorney’s Office was requested in response to the medical incident which occurred at the Public Safety Building. The results of this investigation are crucial to the Department conducting its internal investigation. At this time the full scope of the Department’s internal investigation has not been completed, and is on-going; as a result the Department is unable to release associated materials and is withholding under the following exemptions: Exemption G.L. c. 4, § 7(26)(f); record(s) associated to an open and active investigation, a release of the information would jeopardize the Department’s ability to effectively pursue investigation. . . . At this time a completed investigation report(s) do(es) not exist, and as such the Department has no materials to release. Multimedia files, such as any photos, BWC, audio, etc, are being produced by the IT and ID Divisions of the Department and will be provided upon completion. . . In its December 8, 2025 email to this office, a Department representative provided the following additional information regarding its claims under Exemption (f): . . . regarding the denial of records, the department would like to clarify that the materials denied are in regard to our internal investigation which is not yet completed. This was clarified in our denial response. While our criminal investigation is complete (and the requested reports have been sent). The DA’s office was conducting their own investigation, that this department was waiting for completion on before beginning our internal investigation, which is still not completed, and those materials have been denied. . . . The Department’s response and subsequent email to this office did not did not contain the specificity required in a denial of access to public records. Although the Department claims it has an ongoing investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally unclear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department also did not demonstrate how disclosure of any 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

Amanda Williams SPR25/3613 Page 5 December 22, 2025 is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. Further, it is unclear what types of records the Department possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. As such, the Department must identify the records it has in its possession that it withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Attorney Zogby 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. Sincerely, Manza Arthur Supervisor of Records cc: John T. Zogby, Esq.