The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Shawn A. Williams
Supervisor ofRecords

May 13,2015
SPRlS/156
Ms. Nicole I. Taub, Esq.
Boston Police Department
One Schroeder Plaza
Boston, MA 02120
Dear Attorney Taub:
I have received the petition ofMike Katz-Lacabe appealing the response of the Boston
Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also
950 C.M.R. 32.08(2). Specifically, Mr. Katz-Lacabe requested a copy of records related to two
specifically named companies and the Federal Bureau oflnvestigations (FBI). The requested
records include a non-disclosure agreement as well as notifications about public records requests
sent between the Department, FBI, and the two companies. You denied his request in your
written response dated February 13,2015, claiming that the responsive records are exempt from
disclosure pursuant to the investigatory and Public Safety exemptions. G. L. c. 4, § 7(26)(f), (n).
The Public Records Law strongly favors disclosure by creating a presumption that all
governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the
Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the
applicability of an exemption). The Public Records Law states that "the burden shall be upon the
custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis
added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley,
419 Mass. at 511.

Exemption (f)
Exemption (f), the "investigatory" exemption, permits the withholding of:

OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914
www.sec.state.ma.us/pre

 Ms. Nicole I. Taub, Esq.
Page Two
May 13,2015

SPR15/156

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)(±)
A custodian of records generally must demonstrate a prejudice to investigative efforts in
order to withhold requested records under Exemption (f). 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). The exemption is also intended to allow investigative
officials to provide an assurance of confidentiality to individuals so that they will speak openly
about matters under investigation. Id.
Your response states that the Department is withholding the responsive records because
disclosure would not be in the public interest and would prejudice the possibility of effective law
enforcement. You also state that withholding such information is essential to ensure that the
Department can continue to effectively monitor criminal activity. However, this response does
not explain how these requested records pertain to an ongoing investigation, confidential
investigative techniques, or witness statements and also fails to demonstrate how disclosure of
these particular records would prejudice investigative efforts as required by Exemption (f). With
regard to Exemption (n), this response merely cites the exemption and does not address the
security-related rationale needed to justify withholding records under this exemption.
As a result, the Department has failed to satisfy its burden of proving with specificity
why the responsive records may be withheld in their entirety under Exemption (f) and Exemption
(n). The statutory exemptions are narrowly construed and are not blanket in nature. See
Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979). Any non-exempt,
segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a).
The Department is advised that a records custodian is required to not only cite an exemption, but
to specifically explain the applicability of the exemption to the requested records in order to
comply with the Public Records Law and Regulations.
Accordingly, the Department is hereby ordered, within ten (1 0) days of this order, to
provide Mr. Katz-Lac abe with the requested records. If the Department maintains that any
portion of the responsive records are exempt from disclosure it must, within ten (1 0) days,
provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption
applies to each record.

 Ms. Nicole I. Taub, Esq.
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May 13, 2015

SPR15/156

Supervisor of Records
cc: Mr. Mike Katz-Lacabe