Jesko, Jackie v. Boston, City of - Police Department (SPR 20260741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2026 SPR26/0741 Christine O’Donnell, Esq. Records Access Officer Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Jackie Jesko 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 January 21, 2026, Ms. Jesko requested “a recording of a call made by [an identified individual] for police assistance in investigating a person[.]” Previous Appeal The requested records were the subject of a previous appeal. See SPR26/0502 Determination of the Supervisor of Records (February 24, 2026). In my February 24th determination, I ordered the Department to clarify how the withheld records constitute the type of records contemplated under G. L. c. 41, § 97D. The Department responded on February 24, 2026. Unsatisfied with the Department’s response, Ms. Jesko petitioned this office and this appeal, SPR26/0741, 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 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. SPR26/0741 Page 2 March 16, 2026 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. Current Appeal In her appeal petition, Ms. Jesko contends: The Department’s response provides no case-specific explanation of how releasing this particular 911 call recording would prejudice the possibility of effective law enforcement. The underlying criminal matter, Commonwealth v. Hewitt (2384CR00555), has now concluded, and the defendant entered a guilty plea last month. The Department has not explained how disclosure of a completed 911 report in a closed matter would interfere with any ongoing investigation, reveal confidential investigative techniques, or identify a confidential source whose protection is necessary for effective law enforcement. Additionally, the Department has not addressed whether any concerns it raises could be resolved through redaction rather than full withholding. … The Department’s February 24th Response On February 24, 2026, the Department stated that it withheld certain records 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

Christine O’Donnell, Esq. SPR26/0741 Page 3 March 16, 2026 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 289-90. 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 states: … the Department is denying your request under Exemption F of the public records law because release of this record will have a chilling effect on future law enforcement efforts. As such, the release of this record is not in the public interest. … Encouraging citizens and prospective witnesses to come forward and speak with

Christine O’Donnell, Esq. SPR26/0741 Page 4 March 16, 2026 police and the ability of the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult and will impede the investigatory process. The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. If prospective witnesses do not come forward, the investigatory process will be hampered. Releasing will discourage individuals from reporting concerns to police. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement which is not in the public interest. Based on the Department’s response, it is unclear how the record is related to an investigation and whether the investigation remains ongoing. Also, the Department did not provide any supporting information to demonstrate how disclosure 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 to withhold records under Exemption (f). Further, it is uncertain how identifying information of complainants or voluntary witnesses cannot be redacted from the responsive records and segregable portions provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). It is additionally uncertain what record the Department possesses that is responsive to the request. 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). Consequently, the Department must identify the record in its possession that it is withholding under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Ms. Jesko 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. Ms. Jesko 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: Jackie Jesko