Stokes, Brandon v. Suffolk County District Attorney's Office (SPR 20261311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2026 SPR26/1311 Jacob Gunderson Public Records Team Member Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Mr. Gunderson: I have received the petition of Brandon Stokes, of 7 News WHDH Boston, appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2026, Mr. Stokes requested “Boston Police bodycam video from [a specified police officer] as well as other officers who responded to a reported carjacking that resulted in an officer-involved shooting around 9:45pm on 3/11/26 in the area of 10 Linwood Square in Roxbury. Incident #262020644.” The Office responded on April 2, 2026, and assigned reference number 260319 to this request. Unsatisfied with the Office’s response, Mr. Stokes petitioned this office, and this appeal, SPR26/1311, 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

Jacob Gunderson SPR26/1311 Page 2 April 24, 2026 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 Office’s April 2nd Response In its April 2, 2026 response, the Office cited Exemptions (d) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d), (f). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its April 2nd response, under Exemption (d), the Office argues that “the records requested are still in the process of being created and finalized, thus fall within the ‘deliberate process’ exemption (d) to the public records law (G.L. c. 4, § 7(26)(d)).” Based on the Office’s response, I find it is unclear what deliberative process the body worn camera footage relates to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the video footage would taint any ongoing deliberative process. Additionally, I find the Office has not established how body worn camera footage would constitute “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040

Jacob Gunderson SPR26/1311 Page 3 April 24, 2026 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). Consequently, the Office has not met its burden to withhold the body worn camera footage pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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. 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. 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):

Jacob Gunderson SPR26/1311 Page 4 April 24, 2026  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 April 2nd response, under Exemption (f), the Office argues the following: This investigation remains open. Accordingly, the records sought fall within the “investigatory exemption” to the public records law (G.L. c. 4, § 7 cl. 26(f)), and thus this Office declines to release them at this time. . . . General Laws c. 4, § 7 cl. 26(f), provides a basis for withholding documents where the “disclosure . . . would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”. It is this Office’s position that production of the records related to this case is not in the public interest, as it could jeopardize an active and ongoing investigation. Additionally, materials that you are asking for bear directly upon matters to which witnesses may testify, and public dissemination of the materials could potentially interfere with any witnesses’ ability to testify based on their actual recollection. In this case, based on the information provided in the Office’s response, although the Office has explained that the records are related to an ongoing investigation, the Office has not demonstrated how disclosure of the withheld records “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). It is additionally uncertain how the records can be withheld in their entirety. 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). Consequently, the Office must explain whether the video footage can be redacted so that segregable portions can be provided. Conclusion Accordingly, the Office is ordered to provide Mr. Stokes with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Jacob Gunderson SPR26/1311 Page 5 April 24, 2026 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. Stokes may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes