BPD materials re: Rahim shooting

Shawn Musgrave filed this request with the Boston Police Department of Boston, MA.
Tracking # 16-903
Status
Completed

Communications

From: Shawn Musgrave

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

Materials compiled by the Boston Police Department Firearm Discharge Investigation Team (FDIT) as delivered to the Suffolk District Attorney's Office.

Per the report released by Suffolk DA (see: http://www.suffolkdistrictattorney.com/das-final-report-on-the-june-2-2015-police-involved-shooting-of-usaamah-rahim/): "The investigation included a review of the materials compiled by the Boston Police Department Firearm Discharge Investigation Team (FDIT), working with supervisory special agents designated as assistant inspectors and assigned to the Inspection Division of the FBI. The FBI Inspector’s Report – Agent Involved Shooting Boston Field Office June 2, 2015, and accompanying documents were provided to my office on June 5, 2015. The final Firearm Discharge Investigation Report was delivered to my office on April 12, 2016."

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, processed by a representative of the news media/press and is made in the process of news gathering and not 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 calendar days, as the statute requires.

Sincerely,

Shawn Musgrave

From: Jennifer Samson

Hello:

I will be out of the office on Thursday, August 25, 2016. If you require
immediate assistance, please contact the Office of the Legal Advisor at
617.343.4550. Thank you.

--
Jennifer Samson
Legal Assistant
Boston Police Department
Office of the Legal Advisor
One Schroeder Plaza, 4th Floor
Boston, MA 02120
617.343.4550 (p)
617.343.4609 (f)

*CONFIDENTIALITY NOTICE*: *The information contained in this electronic
mail transmission is intended by the Boston Police Department's Office of
the Legal Advisor for the use of the named individual or entity to which it
is directed and may contain information that is privileged or otherwise
confidential. If you have received this electronic mail transmission in
error, please delete it from your system without copying or forwarding it,
and notify the sender of the error by reply e-mail so that the sender's
address records can be corrected.*

From: Media Relations

August 25, 2016

Shawn Musgrave

Muckrock

Dear Mr. Musgrave:

Pursuant to G. L. c. 66, § 10 (b), this correspondence is to confirm
receipt of your request for documents that are potentially in the
possession, custody or control of the Boston Police Department.
Specifically, you have requested:

Materials compiled by the Boston Police Department Firearm Discharge
Investigation Team (FDIT) as delivered to the Suffolk District Attorney's
Office.

Per the report released by Suffolk DA (see:
http://www.suffolkdistrictattorney.com/das-final-report-on-the-june-2-2015-police-involved-shooting-of-usaamah-rahim/):
"The investigation included a review of the materials compiled by the
Boston Police Department Firearm Discharge Investigation Team (FDIT),
working with supervisory special agents designated as assistant inspectors
and assigned to the Inspection Division of the FBI. The FBI Inspector’s
Report – Agent Involved Shooting Boston Field Office June 2, 2015, and
accompanying documents were provided to my office on June 5, 2015. The
final Firearm Discharge Investigation Report was delivered to my office on
April 12, 2016."

We will contact you as soon as possible with our findings, and will send
you a cost estimate for your requested materials if fulfilling the request
is expected to exceed $10.00, per 950 C.M.R. 32.06(1); 950 C.M.R. 32.03;
M.G.L. c 66 § 10(a).

Please be advised that we research each request in the order it was
received, and it may take longer than ten days to be fulfilled. If your
request requires a substantial amount of research, reviewing and redacting,
fulfilling the request will take a significant amount of time. Please plan
accordingly.

Thank you,

Office of Media Relations

Boston Police Department

617-343-3520
www.bpdnews.com

From: Boston Police Department

A copy of documents responsive to the request.

From: Boston Police Department

A copy of documents responsive to the request.

From: Media Relations

Shawn,

Pursuant to this request I have mailed you a USB Flash Drive that was
provided by the DA's office. It contains all publically available documents
including Materials compiled by the Boston Police Department Firearm
Discharge Investigation Team (FDIT) as delivered to the Suffolk District
Attorney's Office. These documents are responsive to your request.
Thanks,

Lt McCarthy

From: Shawn Musgrave

Lt. McCarthy -

Thank you for your response. This is a request directed to BPD pursuant to the Massachusetts public records statute. As such, I ask that your office conduct its own search for responsive materials — which likely will overlap to a certain degree with materials released by the Suffolk DA — and provide a formal response indicating the legal justification for any redactions within the documents, as well as legal justification for withholding certain documents.

Respectfully,
Shawn Musgrave

From: Shawn Musgrave

Hi Mike -

Confirming that you got my reply a couple days back?

Thanks,
Shawn

From: Media Relations

Shawn,

All the document in possession of BPD are turned over to the DA. So the
effort will be fruitless. The DA purposefully releases the ENTIRE set of
public documents after each investigation is complete. As was the case
here. All responsive documents to your request are contained on the drive
sent to you. We have no additional documents.
Best,

Lt, McCarthy

From: Shawn Musgrave

Lt. McCarthy -

I understand that there may be no additional documents. My question is as to the standard under which redactions were made, as the DA's proactive release of the documents means that such redactions do not fall under the standard of the Public Records Law.

To be clear — do you assert that redactions within the documents you sent were made by BPD, and thus subject to appeal under the Public Records Law? If so, please send a formal response citing the particular exemptions under which the redactions are made.

If this is not the case, I must ask that you review the original documents responsive to this request, make redactions pursuant to the Public Records Law, and provide a formal response citing the applicable exemptions.

Please let me know if you have any questions about the above.

Best,
Shawn Musgrave

From: Media Relations

Shawn,

Actually, you are incorrect. The DA's proactive release of the documents
does not mean that such redactions do not fall under the standard of the
Public Records Law. In fact the redactions made to the documents are done
in accordance to the law. The proactive release is done to ease the process
of those who will ultimately be asking for the documents and does not
disqualify the documents from the public records statute.
To be clear- the documents and the redactions made are done pursuant to the
Massachusetts Public Records Law. Specifically, information or data
relating to specifically named individuals, the disclosure of which may
constitute an unwarranted invasion of privacy may be withheld. The
redaction made to the documents sent were made by both the DA and the BPD
pursuant to the statute. (G.L. c.4 s 7(26)(c).

Please let me know if you need further clarification.

Lt McCarthy

From: Shawn Musgrave

Hi Lt. McCarthy -

Thank you for sending this formal response invoking particular exemptions under the Massachusetts Public Records Law. This is the response the BPD is obligated to provide pursuant to my request to your agency.

I will send an appeal of BPD's response to the Supervisor of Records.

Respectfully,
Shawn

From: Shawn Musgrave

To Whom It May Concern:

I hereby appeal the response by Boston Police Department to my request submitted pursuant to the Massachusetts Public Records Law.

On August 25, 2016, I requested the following materials from the Boston Police Department:
"Materials compiled by the Boston Police Department Firearm Discharge Investigation Team (FDIT) as delivered to the Suffolk District Attorney's Office" regarding the death of Usaamah Abdullah Rahim. One BPD officer and one FBI officer shot Rahim, a suspected terrorist, in Roslindale inJune 2015.

Portions of the requested materials were released by the Suffolk District Attorney's Office on August 25, 2016, as supplementary materials to its report on Rahim's death. (See the DA's report as posted online: http://www.suffolkdistrictattorney.com/wp-content/uploads/2016/08/Rahim-Usaamah-DAs-Final-Report.pdf, last accessed October 8, 2016).

The DA's report summarizes BPD documents reviewed as part of the Suffolk DA's investigation of the shooting: "The investigation included a review of the materials compiled by the Boston Police Department Firearm Discharge Investigation Team (FDIT), working with supervisory special agents designated as assistant inspectors and assigned to the Inspection Division of the FBI. [....] The final Firearm Discharge Investigation Report was delivered to my office on April 12, 2016. The evidence we considered included: sworn, written statements of the involved task force officers; audio-recorded interviews of civilian witnesses; video surveillance footage; police radio transmissions; ballistics analysis of the task force officers’ weapons and ammunition; physical evidence from the scene, including a knife recovered at the scene; criminalistics testing and analysis; the autopsy report with supporting documentation and photographs; scene photographs; and recordings of cell phone communications between Mr. Rahim and identified parties known to investigators. Although every detail of the investigation has been memorialized and documented, some of the investigative materials remain either classified or subject to a nondisclosure agreement with the FBI. We have reviewed all investigative materials, including those that are classified or subject to a non-disclosure agreement with the FBI."

Suffolk District Attorney Daniel Conley noted in his report that the names of the two officers who shot Rahim would not be released: "I have concluded, therefore, that releasing the names of the involved law enforcement officers could seriously endanger their safety. Therefore, I will not release the names of the involved task force officers or their supervisors."

Identifying information for the two officers was redacted from the documents released along with the report.

Upon subsequent request to the Boston Police Department for FDIT materials as provided to the Suffolk DA's office, the agency pointed to the Suffolk DA's proactive release of materials. Lt. Michael McCarthy wrote on September 23, 2016: "Pursuant to this request I have mailed you a USB Flash Drive that was provided by the DA's office. It contains all publically [sic] available documents including Materials compiled by the Boston Police Department Firearm Discharge Investigation Team (FDIT) as delivered to the Suffolk District Attorney's Office. These documents are responsive to your request."

I received the indicated flash drive with materials that were identical to those released by the Suffolk DA, in a package postmarked September 23.

It took subsequent back-and-forth to obtain any formal response from BPD as to the legal justification under which the agency redacted names of individuals — particularly government employees, i.e. law enforcement officers — from the provided materials. On October 7, Lt. McCarthy clarified:

"To be clear- the documents and the redactions made are done pursuant to the Massachusetts Public Records Law. Specifically, information or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of privacy may be withheld. The redaction made to the documents sent were made by both the DA and the BPD pursuant to the statute. (G.L. c.4 s 7(26)(c)."

I hereby appeal redaction of information from these public documents pursuant to Exemption (c) – The Privacy Exemption. This is the sole exemption claimed by BPD, and it is clear that it does not justify such extensive redaction of the responsive documents.

Foremost, as has been the case far too often in response to requests under the public records statute, the BPD has not provided any legal justification as to the invocation of this single exemption to justify redaction of names from these materials. Rattling off an exemption does not meet an agency's obligation to respond with specificity as to how n exemption justifies withholding materials. As the Supervisor noted in a previous determination (SPR 15/787) in response to another appeal I filed against the Boston Police Department: "It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record."

Next, the BPD's invocation of Exemption C is contrary to the Legislature's spirit in establishing this exemption to disclosure of government records. The privacy exemption protects public officials from spurious inquiries into their private lives. The relevant officials in this case are two law enforcement officers who have used deadly force in their official law enforcement capacity as part of an official task force action. The relevant documents identify these officers. It's difficult to imagine a less spurious inquiry than requesting documents that identify law enforcement officers who have used deadly force. In the spirit of public disclosure, it is ridiculous to invoke the privacy of the officers in the present case.

The letter and interpretation of the privacy exemption is similarly inadequate. Exemption C reads in its entirety:

"[...] personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy"

For good reason, BPD does not invoke the first clause. The requested materials do not contain medical files or information. Nor can the requested documents cannot be withheld as personnel records. Pursuant to the Appeals Court ruling in WORCESTER TELEGRAM & GAZETTE CORPORATION vs. CHIEF OF POLICE OF WORCESTER (see http://masscases.com/cases/app/58/58massappct1.html), the "nature and character of these materials, and the context in which they arise, take them beyond what the legislature contemplated when exempting 'personnel [file] or information.'" The requested records are materials from the BPD's Firearm Discharge Investigation Team (FDIT), and so are tantamount to the internal affairs records considered by the Appeals Court in the above case. As such, BPD is wise not to invoke the first clause of Exemption C.

Not so with the second clause. BPD bizarrely suggests that the agency redacts the names of the officers as "information or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of privacy." This is clearly inapplicable to the identity of officers who discharged their government-issued weapons against a suspected terrorist.

As the Supervisor writes in his guide to the Massachusetts public records law, the second clause of Exemption C protects from disclosure “intimate details of a highly personal nature.” As examples, the Supervisor notes "marital status, paternity, substance abuse, government assistance, family disputes and reputation." Notably, the Supervisor does not list the names of public employees.

There are no such "intimate details" contained in the requested documents. The identities of these law enforcement officers who discharged their government-issued weapons cannot constitute "intimate details" any more than the names of the FDIT officers who reviewed their actions. Both the officers who fired at Rahim and the FDIT officers who reviewed such discharges took their respective actions within the scope of their official duties. Materials released by BPD identify the FDIT officers, but not the officers who shot Rahim. Exemption C cannot justify redaction of the latter officers' names. See Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812: "The names and salaries of [government] employees [...] are not the kind of private facts that the Legislature intended to exempt from mandatory disclosure."

Even if the Supervisor finds that the names of the involved officers constitute "intimate details," the public interest in their disclosure far outweighs the officers' privacy interest. In firing at and killing Rahim, two officers invoked one of the gravest powers the public can grant to its government employees: the authority to take a life under particular circumstances. Any privacy interest the involved officers might have is trumped by the public's right to know who fired the lethal shots.

I cannot put it better than the Supreme Judicial Court (377 Mass. 151): "The public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner." In weighing much lighter matter of disclosing lists of tax delinquents, the court determined that the "public interest in such information outweighs any invasion of privacy occasioned by the disclosure of the records."

Oversight of government actions requires the public and the press to know the identities of officials who carry out the government's work. Exemption C — the sole exemption cited by the BPD herein — fails to justify withholding the officers' names in these responsive documents. As such, I ask that you remand this request to the Boston Police Department for good faith release of public records in accordance with the agency's obligations under the Massachusetts Public Records Law.

Respectfully,
Shawn Musgrave

From: Boston Police Department

A letter stating that the request appeal has been received and is being processed.

From: Boston Police Department

A letter stating that the request appeal has been received and is being processed.

From: Boston Police Department

A letter stating that the request appeal has been succesful.

From: SPR

Mr. Musgrave,

I am writing in regards to your above mentioned appeal. In looking into compliance regarding this appeal, the Boston Police Department has informed me they are working on a response in alignment with the 10-27-16 order regarding this appeal. I wanted to notify you of this and remind you that if you do not receive a response or need more help, please be sure to email this office at pre@sec.state.ma.us indicating what you take issue with and that you want further assistance.

Most sincerely,

Angela M. Puccini, Esq.

Staff Attorney

Office of the Secretary of the Commonwealth

Public Records Division

One Ashburton Place, Room 1719

Boston, MA 02108

(617) 727-2832 (office)

(617) 727-5914 (fax)

http://www.sec.state.ma.us/pre/preidx.htm

A Guide to Public Records Law: http://www.sec.state.ma.us/pre/prepdf/guide.pdf

---

Hi Angela -

Thank you for checking in with both me and the BPD. I have not yet received any further correspondence from the BPD, and will ask them for a timeline on complying with the Public Records Division order.

Best,
Shawn

From: Sullivan, Kellie (SEC)

Good morning,

This appeal was closed on October 27, 2016 with the proviso that the Department provide you with a response to your request, please find attached a copy of the determination letter that was mailed following the closing of this appeal. If you require further assistance with this matter, please email this office at pre@sec.state.ma.us<mailto:pre@sec.state.ma.us> indicating what it is you require further assistance with.

Thank you,

Kellie Sullivan
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
617-727-2832

From: Shawn Musgrave

Hello -

To date I have not received the Department's subsequent response to my request in accordance with the SPR's October determination. Please advise.

Best,
Shawn

From: Sullivan, Kellie (SEC)

Hi Pat!

This might be worth a call to Lt. McCarthy.
Thanks!

Kellie Sullivan
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
617-727-2832

From: Mike McCarthy

Dear Mr Musgrave,

This email is in response to your records request and subsequent appeal
#SPR16-903. All responsive records were provided to you via US mail on
September 23, 2016. Please be informed that some of the information
contained in the responsive documents has been redacted pursuant to G.L. c.
4 § 7(26)(c) and (f). G.L. c. 4 § 7(26)(c) states that personnel and
medical files or information, also any other materials or data relating to
a specifically named individual, the disclosure of which may constitute and
unwarranted invasion of personal privacy. Specifically witness information,
e.g. names, addresses, places of work, vehicle make, phone numbers, etc.
has been redacted to protect the identity of those brave enough to provide
information. Witness information can include officers who are considered
witnesses in this ongoing case. This information is redacted to ensure the
personal safety of those named and involved.
Additionally, some of the information contained on the responsive documents
provided to you may contain redactions pursuant to G.L. c. 4 § 7(26)(f).
G.L. c. 4 § 7(26)(f) provides custodians a basis for withholding
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 int the public interest.
Specifically, witness information and names of specific law enforcement
officers have been redacted to protect the integrity of the investigation
process by ensuring that we protect those who put themselves in harms way
by offering information on an ongoing investigation. Additionally, there
remains active court proceedings for a co-conspirator involved in this
case. The release of witness and/or officer information could jeopardize
the successful prosecution of that proceeding by unnecessarily exposing
potential witnesses.

Should you have additional concerns or need further explanation, feel free
to contact our office

Lt Det Michael McCarthy
--
Lieutenant Detective Michael P. McCarthy
Director, Office of Media Relations
617-343-5412 (o)
617-593-4455 (c)

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