Police actions at Emerson College

Dear Kate W
Thank you for your interest in public records of Boston Police Department. Your request has been received and is being processed. Your request was received in this office on 5/27/2024 10:33:25 PM and given the reference number B001593-052724 for tracking purposes.
If this is a media request, please contact the Office of Media Relations directly at 617.343.4520.
To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, I hereby request the following records:

1. Any and all communications sent to or received from employees or administrators of Emerson College on April 21, 22, 23, 24, 25, 26, and 27 of the year 2024.

2. Any and all police reports and complaints and calls received by Boston Police regarding the Emerson College campus, the Transportation Building, or interactions with protesters on April 21, 22, 23, 24, and 25 of the year 2024.

3. All video, audio, and other recordings relating to the Emerson encampment and demonstration from April 25. This includes all footage from body worn cameras during the police actions on April 25 at Emerson College, any and all security camera footage shared by Emerson College regarding that same situation, and any recordings of police radio interactions regarding that same police activity.

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, and is not made for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Kate W

Upload documents directly: https://www.muckrock.com/
You can monitor the progress of your request at the link below and you'll receive an email when your request has been completed. Again, thank you for using the Public Records Center.
Director, Public Information
Boston Police Department

--- Please respond above this line ---
06/04/2024 RE: PUBLIC RECORDS REQUEST of May 27, 2024, Reference # B001593-052724 Dear Kate W: The City of Boston (City) and the Boston Police Department (Department) has received your request for public records.  This response applies only to records that exist and are in the custody of the City. See A Guide to the Massachusetts Public Records Law, p. 32, n.115.  It is expected that a custodian of records must use her superior knowledge of her records concerning responses to public records requests.  950 CMR 32.04(5).  Specifically, you stated:
To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, I hereby request the following records:

1. Any and all communications sent to or received from employees or administrators of Emerson College on April 21, 22, 23, 24, 25, 26, and 27 of the year 2024.

2. Any and all police reports and complaints and calls received by Boston Police regarding the Emerson College campus, the Transportation Building, or interactions with protesters on April 21, 22, 23, 24, and 25 of the year 2024.

3. All video, audio, and other recordings relating to the Emerson encampment and demonstration from April 25. This includes all footage from body worn cameras during the police actions on April 25 at Emerson College, any and all security camera footage shared by Emerson College regarding that same situation, and any recordings of police radio interactions regarding that same police activity.

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, and is not made for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Kate W

Upload documents directly: https://www.muckrock.com/ The records responsive to this request have been released to the Public Records Center.  Click the link below to log in to the Records Center. Four-hundred twenty-four responsive emails are redacted to omit personally identifiable information for specifically identified persons, including names, date of birth, Social Security Numbers, home addresses, and phone numbers.  Such portions are deemed intimate details of a highly personal nature.  The public interest in disclosure does not outweigh the privacy interest these individuals hold.  The information is not available from another public source. G. L.  c.4,  § 7(26) (c). Fifteen responsive email records consist of attorney-client privileged communications. Suffolk Const. Co., Inc. v. Division of Capital Asset Management , 449 Mass. 444 (2007). These records shall be withheld entirely.  A records custodian must satisfy a three-part test in establishing the attorney-client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt. , 449 Mass. 444 (2007); see also SPR18/423 Determination of the Supervisor of Records (April 11, 2018).  The Suffolk Court’s holding imposes a burden on a records custodian of “not only proving the existence of an attorney-client relationship but also (1) that the communications were received from a client during the client’s search for legal advice from the attorney in his capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived.” See SPR18/423 (April 11, 2018), p2.  The withheld records consist solely of communications between City employees and their attorneys. Such records contain information between an attorney and client related to “the client’s search for legal advice from the attorney in his capacity as such.” All of these communications “were made in confidence.”  In all cases “the privilege as to these communications has not been waived.”  The Client is the City of Boston. Forty-five responsive emails consist of information associated with open Boston Police Department Internal Affairs Department (IAD) investigations and criminal proceedings.  These records shall be withheld entirely.  The release will prejudice effective law enforcement. Records custodians may withhold records under the investigatory exemption relating to an ongoing investigation if the release of such records would disclose confidential investigative techniques, procedures, or sources of information. See G. L.  c.4,  § 7(26) (f); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976) .  An essential part of the investigatory process includes a dialogue between police departments, individual citizens, and potential witnesses.  Exemption (f) contemplates that individual citizens should be encouraged to come forward and speak freely with police concerning matters under investigation and the creation of an initiative that police officers might be completely candid in recording their observations, hypotheses, and interim conclusions. Id Two incident reports have been uploaded. There are redactions to these reports of personally identifiable information for specifically identified persons, including date of birth, Social Security Numbers, home addresses, and phone numbers.  Also, the name and identifying information of a juvenile are redacted under Exemption (a) of the Public Records Law in order to protect the identity of juveniles.  Exemption (a) applies to records that are specifically or by necessary implication exempted from disclosure by statute.  G. L. c. 4, § 7(26)(a).   A government entity may use the statutory exemption as a basis for withholding requested materials where the exempting statute expressly states or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted.  Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).  This exemption establishes two categories of exempted records.  The first category consists of records that are expressly exempt from disclosure by statute where the language of the statute will provide that such record "shall not be a public record" or have similar language referring to the confidentiality of the record.  The second category under the exemption includes records deemed exempt under statute by necessary implication.  G. L. c. 4, § 7(26)(a).
The Department redacted the name of the juvenile under the second category where records are exempted by necessary implication pursuant to G.L. c. 41 § 98F which expressly provides that entries on police logs concerning arrests of a person under the age of 18 shall be kept separately, shall not be a public record nor shall such entry be disclosed to the public.  See G.L. c. 41 ss.98F.  While the record you are seeking is not an entry in the daily police log, it does relate to an arrest of a juvenile; therefore, by necessary implication, this information is not public and the Department redacted information relating to the juvenile.
The Department located body-worn camera videos from 1:34 AM to 2:26 AM, totaling 228 hours.  However, the Department is denying your request pursuant to the investigatory exemption to the public records law because the records you seek are related to an ongoing open investigation, and their release at this time will prejudice effective law enforcement.   A records custodian may withhold records concerning investigatory materials necessarily compiled out of public view by law enforcement officials where the disclosure of such materials would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See G. L.  c.4,  § 7(26) (f).
The Department recognizes that exemption (f) does not create a blanket exemption of all investigative materials created and maintained by police departments. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 512 (1995) ; WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990) .  Exemption (f) does not exempt all investigatory materials but rather requires a case-by-case analysis of whether disclosure would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) .
Under the public records law, there is a presumption that the record sought is public, and the burden is on the custodian to prove with specificity how the exemption applies.  G. L.  c. 66  §10 (c).  Records custodians may withhold records relating to an ongoing investigation if the release of such records would disclose confidential investigative techniques, procedures or sources of information. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976) .  An essential part of the investigatory process includes a dialogue between police departments, individual citizens, and potential witnesses.  Exemption (f) contemplates that individual citizens should be encouraged 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. Id .
The Department denies this portion of your request because the records are part of open Internal Affairs Department (IAD) investigations and criminal proceedings; disclosure will prejudice future law enforcement efforts for the reasons stated below.  Disclosure of the requested records would interfere with enforcement proceedings.  The body-worn camera videos are part of the investigation of this incident. Disclosure would prejudice the possibility of effective law enforcement that such disclosure is not in the public interest.  Disclosure would prejudice effective law enforcement because officers and other prospective witnesses have not been interviewed. Disclosure would disclose confidential investigative techniques, procedures, or sources of information.  Disclosure could inhibit the investigatory process by discouraging potential witnesses from coming forward or influencing witness statements.   Encouraging citizens and prospective witnesses to come forward and speak with police and allowing 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.  The collaboration between the public and the police and encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption.  The investigatory process will be hampered if prospective witnesses do not come forward.  Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement, which is not in the public interest.  Further, releasing this record at this time may influence potential witnesses, thereby compromising the investigatory process.  The Department is denying your request to protect the integrity of the investigative process and information relating to confidential investigative techniques, procedures, and sources and to maintain the ability to foster cooperation with the public.  These records are part of an ongoing investigation, and their disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested record is not in the public interest.  Disclosure of this record would also have a chilling effect on future law enforcement efforts.
A records custodian is obligated to provide segregable portions of records where possible. See Globe Newspaper Co. v. Exec. Office of Admin. and Fin. , Suffolk Sup. No. 11-01184- A (June 14, 2013).  However, providing segregable portions of the requested records is impossible without revealing confidential investigative techniques, procedures, or sources of information . Withholding this record is necessary to prevent interference with enforcement proceedings.  The disclosure would prejudice effective law enforcement and not be in the public interest. Once the IAD and criminal investigations are concluded, the Department may reevaluate its position if you wish to make another public records request.
You may appeal this response to the Supervisor of Records in the Office of the Secretary of the Commonwealth. G. L. c. 66, § 10A (c); G. L. c. 66, § 10(b)(ix); 950 CMR 32.08; 950 CMR 32.08(1)(h) (in petitioning the Supervisor, the requester shall provide a copy of such petition to the records access officer associated with such petition). You may also appeal to the Superior Court. 950 CMR 32.06(3)(c). Yours truly, Christine O'Donnell Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department