COMMONWEALTH OF MASSACHUSETTS
Superior Court

Suffolk, ss.

)
AMERICAN CIVIL LIBERTIES UNION )
OF MASSACHUSETTS, INC.,
)
CHILDREN'S LAW CENTER OF
)
MASSACHUSETTS, GREATER
)
BOSTON LEGAL SERVICES,
)
JUSTICE CENTER OF SOUTHEAST
)
MASSACHUSETTS, MUSLIM JUSTICE )
LEAGUE, NATIONAL LAWYERS
)
GUILD, MASSACHUSETTS CHAPTER, )
and POLITICAL ASYLUM/
)
IMMIGRATION REPRESENTATION
)
PROJECT,
)
)
Plaintiffs,
)
v.
)
)
BOSTON POLICE DEPARTMENT,
)
WILLIAM G. GROSS, in his Official
)
Capacity as the COMMISSIONER
)
OF THE BOSTON POLICE
)
DEPARTMENT, BOSTON REGIONAL
)
INTELLIGENCE CENTER, and CITY
)
OF BOSTON,
)
)
Defendants. )

Civil Action No.-

-

-

COMPLAINT
I.

Plaintiffs are legal services and civil rights organizations that seek public records

showing how the Boston Police Department ("BPD") labels, tracks, and shares information about
young people it alleges to be involved in gangs.
2.

Being labeled as a gang member can have catastrophic consequences for a young

person's life, including being targeted for surveillance and police stops, facing harsher outcomes

 in the criminal justice system, and-for noncitizen youth- being detained and deported. Yet,
under BPD rules, police can place children in its "Gang Assessment Database" and label them as
"active" gang members based on nothing more than the clothing they are seen in and the
classmates they are seen with.
3.

Despite these harsh realities, little is known about the BPD's use of its gang

database. Plaintiffs do not know, for example, how many people are in Boston's gang database,
what proportion of those people are Black and Latinx, whether the BPD has ever assessed the
gang database's accuracy or effectiveness at fighting crime, whether procedures exist for
removing false allegations from the database, or how Immigration and Customs Enforcement
("ICE") officials learn of gang allegations.
4.

Plaintiffs thus sent defendants BPD and the Boston Regional Intelligence Center

("BRIC") a public records request on May 21 , 2018, nearly six months ago. Defendants have
delayed their response to that request, failed to conduct an adequate search, and erroneously
relied on exemptions to the Massachusetts Public Records Law (''MPRL"). To this day, plaintiffs
have received only a handful of records. Plaintiffs therefore bring this suit under G.L. c. 66,

§ 1OA(c), seeking declaratory and injunctive relief requiring the defendants to comply with the
MPRL by producing all requested documents without further delay.
Jurisdiction and Venue

5.

Jurisdiction and venue are proper in this Court pursuant to G.L. c. 66, § lOA(c).

2

 Parties

6.

Plaintiff American Civil Liberties Union of Massachusetts, Inc. ("ACLUM") is a

Massachusetts nonprofit corporation with a principal place of business in Boston, Massachusetts.
7.

Plaintiff Children's Law Center of Massachusetts is a Massachusetts nonprofit

corporation with a principal place of business in Lynn, Massachusetts.
8.

Plaintiff Greater Boston Legal Services is a Massachusetts nonprofit corporation

with a principal place of business in Boston, Massachusetts.
9.

Plaintiff Justice Center of Southeast Massachusetts is a subsidiary of South

Coastal Counties Legal Services, a Massachusetts nonprofit corporation. Its principal place of
business in Brockton, Massachusetts.
10.

Plaintiff Muslim Justice League is a Massachusetts nonprofit corporation with a

principal place of business in Boston, Massachusetts.
11 .

Plaintiff National Lawyers Guild, Massachusetts Chapter is a Massachusetts

nonprofit corporation with a principal place of business in Boston, Massachusetts.
12.

Plaintiff Political Asylum/Immigration Representation Project is a Massachusetts

nonprofit corporation with a principal place of business in Boston, Massachusetts.
13.

Defendant Boston Police Department is an agency of the City of Boston and a

custodian of the records plaintiffs seek. Its principal place of business is in Boston.
14.

Defendant William G. Gross is the Commissioner of the Boston Police

Department and a custodian of the records plaintiffs seek. He is being sued in his official
capacity. His usual place of employment is in Boston.
15.

Defendant Boston Regional Intelligence Agency ("BRlC") is a "fusion center"

that is run by the BPD and serves to facilitate information-sharing between local, state, and

3

 federal law enforcement entities in the Boston area. It is a custodian of the records plaintiffs
seek. Its principal place of business is in Boston.
16.

Defendant City of Boston is a custodian of the records plaintiffs seek.

Background
17.

The recent use of information from Boston's gang database by ICE officials in

immigration court has shed light into a system that is otherwise shrouded in secrecy. Here is
what plaintiffs have learned:
The BPD 's gang database

18.

The BPD has databases that contain information concerning the alleged affiliation

of individuals with gangs.
19.

These databases include the "Gang Assessment Database," which is maintained

by the BRIC.
20.

The BPD uses a point system to determine whether to include someone in the

Gang Assessment Database. The point system is based on alleged markers of gang involvement.
21.

Under the point system, a person is designated as a "Gang Associate" if he is

assessed six or more points, and a "Gang Member" ifhe is assessed ten or more points. See
Exhibit A, Boston Police Department Rules and Procedures Rule 335.
22.

The point system makes it possible to designate someone a Gang Associate or

Gang Member without any allegation that he engaged in violence or criminal activity.
23 .

An individual may be assessed eight points for being the victim of gang-related

violence. Id. at 3.

4

 24.

An individual may be assessed two points for each instance in which he is seen

with an alleged gang member or associate, even in a photograph, and even ifthat alleged gang
member or associate is a classmate, neighbor, or family member. Id.
25.

An individual may be assessed four points for each instance in which a police

report describes him to have been "[w]alking, eating, recreating, communicating, or otherwise
associating with" a gang member; for making a hand gesture believed to be a gang sign; and for
wearing clothing that police deem to be gang-related. Id. at 6.
26.

Other factors the BPD considers are circular. For example, an individual may be

assessed eight points if another law enforcement agency determines he is a gang member,
without regard to the evidence or criteria used, or nine points for being in possession of court or
"investigative documents" that label him a gang member. Id. at 3.

Inaccuracies and racial disparities in the gang database
27.

On information and belief, the Gang Assessment Database mislabels a significant

number of people as gang members.
28.

On information and belief, many individuals included in the Gang Assessment

Database have never been convicted of or anested for any crime.
29.

On information and belief, most people in the Gang Assessment Database are

Black or Latinx.
30.

On information and belief, racial disparities in the Gang Assessment Database

result in part from the disparate application of the criteria for determining gang membership.
Because the criteria for gang membership are vague enough to be used in nearly any situation,
they are readily applied to things that are popular among certain Black or Latinx youth.

5

 31.

As an illustration: using the rule that assigns points to gang-related "paraphernalia

or identifiers," police may label widely-available clothing as gang apparel when it is worn by
youth from particular communities.
32.

For example, the BPD has deemed Chicago Bulls caps to be gang apparel.

33.

On information and belief, Central American youth in Boston have also been

assigned points for wearing or having pictures of Air Jordan or other Nike brand sneakers.
34.

On information and belief, racial disparities in the Gang Assessment Database

also result from the BPD' s disproportionate surveillance of Black and Latinx youth, and its
reliance on such surveillance to assign points that qualify individuals as gang members.
35.

The BPD frequently surveils youth as they leave school or gather in the park.

36.

The BPD and BRIC also visit social media sites like Facebook and assign points

to individuals based on their pictures and posts.
37.

Through school officers, the BPD and BRIC also gather information about the

social lives of young people inside their schools.
38.

Under the rule that assigns five points based on "information developed during

investigation and/or surveillance," some young people receive half of the points necessary to be
deemed a gang member simply because school police have surveilled them talking to or walking
with classmates who are alleged to have gang ties.
39.

On information and belief, most youth who are subject to surveillance are Black

and Latinx.
40.

For example, one type of record that may be used to substantiate allegations of

gang membership is a Field Interrogation/Observation/Encounter ("FIOE") report documenting
that police saw a particular individual with an alleged gang member. FIOE reports are commonly

6

 used to document police observations of and interactions with pa.Iiicular individuals, including
stops and frisks.
41 .

A years-long study ofFIOE reports conducted at the request of the BPD and

plaintiff ACLUM revealed racially disparate treatment-i. e., actions that could not be explained
by crime or other non-race factors- by the BPD against people and communities of color. For
example, after controlling for crime and alleged gang affiliation, the study found that the more
Black and Latinx individuals lived in a neighborhood, the more FIOE activity the BPD
conducted. 1
42.

The BPD has never publicly revealed the number of people in the Gang

Assessment Database, or their breakdown by race, age, or other criteria.
43.

Nor, on information and belief, has the Gang Assessment Database been reviewed

by an independent third party to verify its reliability or effectiveness.
44.

Studies of similar databases have revealed significant problems. For example, a

2016 state audit of California's "CalGang" database revealed that 13% oflistings lacked the
required evidence to support the listing. In addition, Cal Gang listed dozens of children as alleged
gang members who were younger than one year of age at the time of entry, including 28 who
were entered for "admitting to being gang members."2 This year, a review of Chicago's gang
database by ProPublica revealed that it was riddled with inaccuracies, and that 95% of the
individuals listed as gang members were Black or Latinx. 3

1

See J. Fagan et al., FINAL REPORT: AN ANALYSIS OF RACE AND ETHNICITY PATTERNS IN BOSTON POLICE
DEPARTMENT FIELD INTERROGATION, OBSERVATION, FRISK, AND/OR SEARCH REPORTS (Jun. 15, 20 15) available at
http://raceandpolicing.issuelab.org/resources/25203/25203 .pdf ("POLICING RACE AND ETHNICITY IN BOSTON
REPORT").
2
Elaine M. Howle, THE CALGANG CRIMINAL lNTELLlGENCE SYSTEM, California State Auditor Report 2015- 130
(Aug. 11, 2016), available at https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf.
3
See M. Dumke, "Chicago's Gang Database is Full of Errors - And Records We Have Prove lt," PROPUBLICA
ILLINOIS (Apr. 19, 2018), available at https://www.propublica.org/article/politic-il-insider-chicago-gang-database.

7

 Consequences of inclusion in the gang database

45.

Inclusion in the Gang Assessment Database can have dire consequences,

including increased targeting for police surveillance and stops, and greater exposure to aITest for
low-level crimes. For noncitizen youth, these consequences include detention and deportation.
46.

ICE has access to, or receives information from, the Gang Assessment Database.

47.

On information and belief, inclusion in the Gang Assessment Database creates a

significant likelihood that a noncitizen youth in Boston will be detained by ICE after he turns 18.
Once detained, a young person accused of gang membership is likely to be denied bond.
48.

Indeed, one ICE official has been quoted as saying that "[t]he purpose of

classifying [an individual] as a gang member or a gang associate is because once he goes in front
of an immigration judge, we don't want him to get bail" (emphasis added). 4
49.

Once denied bond and accused of being a gang member, a noncitizen youth's

chances of prevailing in his immigration case plummet.
50.

The BPD does not notify individuals before or after adding them to the Gang

Assessment Database. Nor does it notify individuals that they have been assessed points toward
inclusion in the Gang Assessment Database.
51.

On information and belief, despite the dramatic consequences for civil liberties

and personal freedom of being mislabeled as a gang member, the BPD does not provide any
procedure through which listed individuals can contest their status, request that old and irrelevant
information be purged, or challenge the assessment of points in the Gang Assessment Database.

4

"Inside Ice's Controversial Crackdown on MS-13," CBS NEWS (Nov. 16, 2017), available at
https://www.cbsnews.com/news/ms-13-gang-ice-crackdown-thomas-homan/.

8

 52.

Being labeled as a gang member has had devastating consequences for youth in

Boston, including: 5
•

Martin is a Salvadoran teenager who fled gang violence and settled with his
mother, sister and aunt in East Boston. He wound up in the BRIC's gang database
because he was a victim of an assault at school, and because he was seen leaving
school and hanging out with other youth who are alleged to be gang members. He
was detained by ICE at the age of 18, and remains detained. BPD has refused his
attorney's request for the FIOE records that caused Martin to be in the gang
database.

•

Lucas is a Central American youth who had never been arrested or charged with
any adult or juvenile offense. He was detained by ICE based entirely on FIOEs by
BPD and school police, who saw him with alleged gang members. Although
Lucas has a valid petition for status pending, he remains detained and is likely to
be denied the opportunity to pursue that protection.

•

Victor came to the United States from Central America seeking protection from
violence and parental neglect in 2012. In 2018, when he was about to be awarded
his green card, U.S. Citizenship and Immigration Services ("USCIS") obtained
BRIC records reflecting that-five years earlier- a Boston School Police officer
bad alleged that Victor was a gang member. The government has threatened to
revoke its previous approval of his status and deport him based on that allegation.

Plaintiffs' Public Records Request
53.

The devastating impact of gang allegations bas raised numerous questions about

how individuals are targeted for inclusion in gang databases and how information from the
database is used. For example, plaintiffs do not know the number of people in the gang database,
the gang database's effectiveness at fighting crime, or how ICE accesses gang information that is
generated by BPD or school officers.
54.

On May 21, 2018, plaintiffs sent a written public records request under G.L. c. 66,

§ 10 ("Records Request") to the BPD and BRIC for documents relating to the Gang Assessment

Database and any other databases in which gang allegation infonnation is kept.

5

All names in this paragraph are pseudonyms.

9

 55.

A copy of the Records Request is attached as Exhibit B. For ease of reference, the

seven categories of records plaintiffs requested, include, respectively:
1.

Policies relating to the entry, storage, and dissemination of information in
the databases;

2.

Records reflecting database characteristics and use of the databases,
including the number of people in the databases, their demographic
breakdown, the agencies and individuals who use the databases, and the
effectiveness of the databases for fighting crime;

3.

Audit and compliance records;

4.

Each entry in the databases, not including names and other personal
information;

5.

Records required to be kept under 28 C.F .R. § 23 .20(g) of every instance
since January 1, 2015 in which information from the databases has been
disseminated;

6.

Policies regarding how alleged gang members are identified and
monitored; and

7.
56.

Guidance provided to school police about the gang database.

An attomey for the BPD responded by email on June 7, 2018 and indicated that

she hoped to provide materials the following week.
57.

Plaintiffs did not receive documents the following week. On June 28, 2018, a

different attorney representing the BPD confirmed by telephone that she was working on a
response, and that the BPD's response would be for both the BPD and the BRIC.

10

 58.

With a cover letter dated July 3, 2018, the BPD produced five documents,

deferred producing some documents, and claimed exemptions as to other documents. This letter
is attached as Exhibit C.
59.

The five documents BPD produced purported to respond to item 1 of plaintiffs'

request, which seeks written policies governing the operation of the gang database. The
documents totaled 59 pages, of which 52 are available on the BPD's website, including BRJC's
45-page privacy policy. Two of the documents appear to be missing pages.
60.

In response to items 2, 3, and 5 of the request-seeking, respectively, database

characteristics and use, audit and compliance records, and records relating to the dissemination
of information from the database(s)-the BPD stated that it was "still in the process ofreviewing
these requests in order to determine how to search for and segregate responsive material," and
that it would "supplement its response to these items." It has not done so.
61.

In response to items 4, 6, and 7 of plaintiffs' request- seeking, respectively, the

database entries, policies with regard to the identification of gang members, and guidance given
to school police- the BPD contended that the records were exempt from disclosure under G.L.
c. 4, § 7, Twenty-sixth (c), (f), and (n).
62.

Plaintiffs responded in a letter on August 8, 2018, asking the BPD to complete the

search for documents responsive to item 1 of plaintiffs' request (relating to policies governing
the operation of the gang database), and provide a response to the other portions of plaintiffs
response. With regard to items 4, 6 and 7, the letter explained in detail why the exemptions BPD
claimed are inapplicable to the documents sought. A copy of this letter is attached as Exhibit D.

11

 63.

On August 10, 2018, the Records Access Officer for the City of Boston stated by

email that he had received plaintiffs' August 8 letter, and that he would "review [it] with the
Boston Police Department and will provide a response once that review is complete."
64.

Plaintiffs wrote to the Records Access Officer for the City of Boston on August

30, 2018, September 20, 2018, and October 16, 2018 to inquire about the status of the records
request.
65.

On October 17, 2018, the Records Access Officer responded and indicated that

he and the Office of the Legal Advisor would begin to review the original request and the
subsequent correspondence, and would provide an update "as soon as possible."
66.

Plaintiffs requested a complete response by November 1, 2018.

67.

To date, defendants have not responded further or otherwise supplemented their

incomplete July 3 production.
Claims for Relief
Count I: Violation of G.L. c. 66, § 10

68.

Plaintiffs incorporate by reference and reallege all of the allegations in the

preceding paragraphs.
69.

The MPRL strongly favors disclosure by creating a presumption that all

government records are public records.
70.

Under the MPRL, defendants were required to respond to plaintiffs' request

within ten business days, to conduct an adequate search for responsive documents, and to
demonstrate the application of any exemptions. G.L. c. 66, § lO(b).
71.

Defendants have custody of public records requested by plaintiffs.

12

 72.

Defendants failed to provide a timely response to plaintiffs' request. Indeed, after

nearly six months, they have provided only five documents in response to item 1 of plaintiffs'
request-seeking policies governing the operation of gang databases- and no documents in
response to the other six items in plaintiffs' request.
73.

On info1mation and belief, defendants have failed to conduct an adequate search

with regard to each part of plaintiffs' seven-part request.
74.

Defendants have also erroneously relied on Public Records Law exemptions (c),

(f), and (n) in withholding records responsive to parts 4, 6 and 7 of plaintiffs' request-seeking,
respectively, database entries, policies goveming the identification of gang members, and
guidance given to school police.
75.

Exemption (c) exempts from disclosure "materials or data relating to a

specifically named individual, the disclosure of which may constitute an unwarranted invasion of
personal privacy." G.L. c. 4, § 7, Twenty-sixth (c).
76.

Exemption (c) does not apply because plaintiffs requested that names and other

personal information be omitted from responsive documents. As a result, the disclosure of the
requested records would not constitute an unwarranted invasion of privacy.
77.

Exemption (n) exempts from disclosure "blueprints, plans, policies, procedures

and schematic drawings . .. or any other records relating to the security or safety of persons or
buildings ... the disclosure of which, in the reasonable judgment of the custodian . . . is likely to
jeopardize public safety or cyber security." G.L. c. 4, § 7, Twenty-sixth (n).
78.

Exemption (n) does not apply because the records requested are not blueprints or

other records relating to safety or security in any buildings, as enumerated in the statute.

13

 79.

Exemption (f) exempts from disclosure "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, Twentysixth (f).
80.

Exemption (f) does not apply. The BPD has not met its burden of showing how

the disclosure of the requested records would " so prejudice the possibility of effective law
enforcement that such disclosure would not be in the public interest." Although a primary
purpose of the exemption is to avoid the premature disclosure of law enforcement's case before
trial, Bougas v. Chief ofPolice ofLexington, 371 Mass. 59, 62 (1976), the BPD cannot point to
any specific ongoing investigation that may be compromised by disclosure. Exemption (f) does
not provide a blanket exemption for investigatory records or protect general informationgathering unrelated to a specific crime. The BPD has failed to demonstrate that Exemption (f)
applies to any requested document.
81.

Defendants' actions violate G.L. c. 66, § 10.

Count II: Declaratory Judgment
82.

Plaintiffs incorporate by reference and reallege all of the allegations in the

preceding paragraphs.
83.

There is an actual controversy between plaintiffs and defendants regarding the

production of requested records.
84.

Pursuant to G. L. c. 23 lA and the MPRL, plaintiffs are entitled to a declaration

that the records they request are public records within the meaning of G. L. c. 66, § 10, that their
release is required by law, and that defendants have no right to withhold such records.

14

 Prayer for Relief

WHEREFORE, the plaintiffs request that this Court:
1.

Issue a declaratory judgment that the records the plaintiffs have

requested are public records within the meaning of G.L. c. 66, § 10, and that the
BPD has no right to withhold such records;
2.

Enter a permanent injunction requiring the BPD to disclose all of

the records the plaintiffs have requested ;
3.

Award the plaintiffs their costs and attorneys' fees in bringing this

action; and
4.

Grant such other relief as the Court deems just and proper.

By their attorneys,

~

~

~---

Matthew R. Segal (BBO #654489)
Adriana Lafai ll e (BBO #6802 10)

2 1 l Congress Sh·eet
Boston, MA 02 110
(6 17) 482-3 170

Scott P. Lewis (BBO #29 8740)
David B . Lyons (BBO #699505)
A ustin P. Anderson (BBO #696 14)
ANDERSON & K REIG ER, LLP
50 Milk Street, 2 1sL Fl oor
Boston, MA 02 109
(6 17) 62 1-6500

Claire S. Valentin (BBO #682721)

Nancy J. Kelly (BBO #544562)

CH ILDREN'S L AW CENTER OF

GREATER BOSTON LEGAL S ERVICES

M ASSACHUSETTS

197 Friend Street
Boston, MA 02114
(617) 603-1808

AMERICAN C IVI L LI BERTI ES UNION
FOUN DATION OF MA SSAC HUSETTS, INC.

298 Union St. 2nd Floor
Lynn, MA 01901
(78 1) 244-1433
Emily B. Leung (BBO #669903)
Brian O 'Conno r (BBQ #636175)

Shannon Al-Wakeel (BBO #680074)

JUSTIC E CENTER OF SO UTHEAST

c/o WeWork 8th Floor
745 Atlantic Ave

MASSAC HUSETTS

MUSLIM J USTICE LEAGUE

15

 62 Main Street, Suite 302
Brockton, MA 0230 1
(508) 638-0153

Boston, MA 02111
(857) 217-2930

Jeffrey Petrucelly (BBO #397200)

Elena Noureddine (BBO #691563)
PAIR PROJECT
98 North Washington Street, Suite 106
Boston, MA 021 14
(617) 742-9296 x 6

NATIONAL LA WYERS G UILD,
MASSACHUSETTS CHAPTER

41 West Street, Suite 700
Boston, MA 021 11
(617) 943-5844

November 15, 2018

16

 EXHIBIT A

Boston Police Department Rules and Procedures

Rule 335

March 23, 2017

Rule 335 - GANG ASSESSMENT DATABASE
GENERAL CONSIDERATIONS:
In 1993, the Boston Police Department created a coordinated, multi-agency enforcement

unit to address the youth violence problem affecting the City of Boston. The Youth
Violence Strike Force, as it was named, has since evolved to incorporate prevention,
intervention, and enforcement strategies. The following Rule delineates the
responsibilities of the Youth Violence Strike Force as well as the process for gang
member verification and entry into the Gang Assessment Database.
YOUTH VIOLENCE STRIKE FORCE:

Established in 1993 in response to the increased use of violence amongst youth in the
City of Boston.
The mission of the Boston Police Department's Youth Violence Strike Force (YVSF) is
to proactively reduce gun violence, particularly concentrating on individuals affiliated
with gangs or violent criminal behavior. YVSF utilizes traditional policing strategies,
incorporating prevention, intervention and enforcement efforts, as well as intelligence-led
policing strategies to inform decision-making at every level. Patrol officers and
detectives collect information and focus on sources of fireann and gang
violence through the identification of individuals, groups, and locations. YVSF works
collaboratively with community partners and other stakeholders to garner infonnation on
illegal firearms and related violence. Officers aim to prevent ongoing conflicts among
street gangs through direct interaction with individuals and groups. Officers not only
respond to but anticipate retaliatory violence between groups, and make every effort to
deter further violence. Through community-based partnerships, suitable individuals with
whom the YVSF makes contact are referred to social services and offered a variety of
opportunities.
DEFINITIONS:
Gang
A gang is an ongoing organization, association, or group of three (3) or more persons,
whether formal or infonnal, which meets both of the following criteria:

1.
2.

Has a common name or common identifying signs or colors or symbols or
frequent a specific area or location and may claim it as their territory and
Has members or associates who, individually or collectively, engage in or have
engaged in criminal activity which may include incidents of targeting rival gang
members and/or being targeted by other gangs.

Page 1of4

 Boston Police Department Rules and Procedures

Rule 335

March 23, 2017

Gang Associate- Any person, whether juvenile or adult, that has been verified using the
10 Point Verification System defined by this Rule and has obtained at least six (6) points.
Gang Member-Any person, whether juvenile or adult, that has been verified using the
10 Point Verification System defined by this Rule and has obtained ten (10) points.
Gang Assessment Database- Database maintained by the BRIC that includes Gang
Members and Gang Associates that have been verified using the 10 Point Verification
System.
Active Status: An individual who has met the point criteria to be considered at least an
associate and has had contact with another gang member I associate or has participated in
some form of gang activity within the past 5 years to include instances where the
individual may have been incarcerated.
Inactive Status: An individual who has met the point criteria to be considered at least an
associate and has NOT had documented contact with another gang member I associate,
law enforcement agency within the past 5 years.
Primary Affiliation: The group to which an individual is associated with. In cases where
an individual associates with more than 1 group, the primary affiliation should be
considered the group in which Law Enforcement can most clearly articulate the
individual having the strongest ties.
Secondary Affiliation: A secondary group that an individual could be verified as being
at least an associate (6 points). This is in addition to their Primary Affiliation.
Profile Page I Face Sheet: A printable summary detailing a gang member I associate's
key identifiers to include: Name, DOB, Race, Known Addresses, Affiliation status and
Verification status, Criminal Record Number, Booking Numbers and Booking Photo.
Gang Member Verification Report: A printable summary of any items used to verify
an individual as a gang member I associate.

GANG MEMBER VERIFICATION:
The Department uses a "JO Point Verification System" to detem1ine when an individual
will be considered a Gang Associate or Gang Member. An individual that does not have a
minimum of six ( 6) points using the 10 Point Verification System will not be included in
the Gang Assessment Database.
The following list of items or activities are examples of conduct that could result in an
individual's verification for entry into the Gang Assessment Database and are not meant
to be all inclusive.

Page 2of4

 Boston Police Department Rules and Procedures

Rule 335

March 23, 2017

•

Prior Validation by a Law Enforcement Agency (9 points)

•

Information Received from an Unaffiliated Law Enforcement Agency (8 points)

•
•

Self Admission (8 points)
Use and or Possession of Group Paraphernalia or Identifiers (4 points)

•
•
•
•

Group Related Photograph (2 points)
Known Group Tattoo or Marking (8 points)
Information from Reliable, Confidential Infonnant (5 points)
Information from Anonymous Informant or Tipster (1 point)

•

Victim/Target Affiliated with Member of Rival Group (8 points if not in custody
or incarcerated; 3 points if in custody or incarcerated)

•

Possession of Documents (8 points if not in custody or incarcerated; 3 points if in
custody or incarcerated)

•
•

Named in Documents as a Member (8 points)
Possession of Gang Publications (2 points)

•
•

Participation in Publications (8 points)
Court and Investigative Documents (9 points)

•
•
•

Published News Accounts (1 point)
Contact with Known Gang Member/Associate (FIO) (2 points per interaction)
Documented Association (BPD Incident Report) ( 4 points per interaction)

•
•

Membership Documents (9 points)
Information Developed During Investigation and/or Surveillance (5 points)

•

Information Not Covered By Other Selection Criteria (1 point)

10 Points will result in a person being identified as a Gang Member.
6-9 Points will result in a person being identified as a Gang Associate.
A blank verification form is attached to this rule as Appendix A.

ACCESS:
The Department will provide access to the Gang Assessment D atabase for each sworn
officer and authorized user. All authorized users must complete a User Agreement before
gaining access. Officers must have a legitimate law enforcement purpose, which may
include an ongoing investigation or in support of a prosecution, for accessing the Gang
Assessment Database. The Boston Regional Intelligence Center (BRIC) will serve as the
administrator of the central database and ensure that users have adequate access.
Officers will have the following access permissions:
• READ all Gang Assessment Database Entries within the system
• SEARCH all entries within the system
• PRINT specific Gang Associate and/or Member profile pages I face sheets in
order to comply with court discovery or to include in an investigative file
Page 3of4

 Boston Police Department Rules and Procedures

Rule 335

March 23, 2017

Additional access permissions may be granted at the discretion of the Commander of the
BIA or his/her designee or the Commander of the Youth Violence Strike Force or his/her
designee.
SUBMISSION TO THE GANG ASSESSMENT DATABASE:

Employees will be able to submit an individual for consideration for admission into the
Gang Assessment Database.
All submissions for verification shall include
documentation to support the individual's entry into the Gang Assessment Database
using the 10 Point Verification System. This documentation may include, but is not
limited to, Incident Reports, FIOs, Intelligence Reports, Form 26s, and information
gathered from social media.
Submissions can be made to the Commander of the BRIC or his/her designee or the
Commander of the Youth Violence Strike Force or his/her designee.
If the individual is verified as a gang member or gang associate, the name and supporting
documentation shall be forwarded to the BRIC for entry into the Gang Assessment
Database.
DISSEMINATION OF GANG ASSESSMENT DATABASE INFORMATION:

All data contained in the Gang Assessment Database is considered Law Enforcement
Sensitive. Officers may access the Gang Assessment Database when there is a legitimate
law enforcement purpose for doing so, such as an ongoing investigation or in support of a
prosecution. All court ordered, defense requested, or public requested production of
information contained in the Gang Assessment Database should be directed to the Office
of the Legal Advisor.
REVIEW OF GANG ASSESSMENT DATABASE ENTRIES

The Commander of the BIA or his/her designee, in collaboration with the Commander of
the Youth Violence Strike Force or his/her designee, shall be responsible for ensuring
that files are maintained in accordance with the goals and objectives set forth in this Rule.
To that end, entries in the Gang Assessment Database shall be reviewed in accordance
with state and federal law to determine current Active I Inactive status based on the
definitions provided above. Individuals with an Inactive status who have NOT had
documented association with another gang member I associate or law enforcement
agency within the past 10 years may be reviewed for purge from the system.
Click to view the Gang Member Verification

William B. Evans
Police Commissioner

Page 4of4

 VERIFY

ta

Page 1of3

GANG ASSESSMENT DATABASE
maintained by the BOSTON REGIONAL INTELLIGENCE CENTER

Gang Member Verification
Person: TESTY, TESTY II (1/2/2003)

In accordance with 28 CFR 23.20 (c), information may not be entered into the Gang Assessment Database unless a
reasonable suspicion standard has been met. This standard is met either by a participating agency having a reasonable
basis to believe that there is the possibility that an individual or entity is involved in a specific criminal activity or
enterprise; or the presumption of reasonable suspicion arises from the accrual of ten (10) points using the following
selection criteria. The criminal justice agency submitting the data to the Gang Assessment Database is responsible for
establishing the existence of reasonable suspicion of criminal activity.
The headings provided below are illustrative and do not constitute a complete list of the items or activities that could
lead law enforcement officials to include an individual in this database.
Gang: select...

PRIOR VALIDATION BY A LAW ENFORCEMENT AGENCY
For purposes of this database, the agency in question must utilize these selection criteria.

n

19points

INFORMATION RECEIVED FROM AN UNAFFILIATED LAW ENFORCEMENT AGENCY
An unaffiliated law enforcement agency is an agency which does not utilize these selection criteria.

n

8 points

SELF ADMISSION
The individual describes him or herself as a gang member.

n 8points
USE AND OR POSSESSION OF GROUP PARAPHERNALIA OR IDENTIFIERS
These may included, but are not necessarily limited to, symbols, sayings or slogans, grafitti, hand signs or signals,
nicknames, attire, articles of clothing, drawings, or other identifiers used by a particular gang.

n 4 points
GROUP RELATED PHOTOGRAPH

n 2 points
KNOWN GROUP TATTOO OR MARKING

n 8polnts
INFORMATION FROM RELIABLE. CONFIDENTIAL INFORMANT

n 5 points
INFORMATION FROM ANONYMOUS INFORMANT OR TIPSTER

n 1 points
VICTIM I TARGET AFFILIATED WITH/MEMBER OF RIVAL GROUP
An individual participated in a gang related threat or assault, or an individual has been the victim or target of rival
gang members.

http://crimentelweb/GANG/verification. asp? gang_personid=5 356&username=goodbacl&v... 6/28/20 10

 VERIFY

n

Page 2 of 3

If not In custody or Incarcerated: 8 points

n If In custody or Incarcerated: 3 points
POSSESSION OF DOCUMENTS
Documents include by-laws, ceremonial procedures, rosters, hit list, address boo!<, orother documents related to
gang membership.

n If not in custody or Incarcerated: 8 points
n If In custody or incarcerated: 4 points
NAMED IN DOCUMENTS AS A MEMBER
An individual who is names in letters, by-laws, rosters, address books, or similar internal documents as a member of
a gang.

n

8 points

POSSESSION OF GANG PUBLICATIONS

n

2 points

PARTICIPATION IN PUBLICATIONS
An individual submits articles, illustrations, advertisements to a known gang publication.

n Bpoints
COURT AND INVESTIGATIVE DOCUMENTS
Possession of documents that identify a defendant as a gang member in a true bill indictment, probation report, or
similar official court record, or possession of documents (including but not limited to police reports, gang jury minutes,
proffer letters, reports of proffer sessions, cooperation agreements, and other law enforcement investigative materials)
that identify individuals as gang members.

n 9 points
PUBLISHED NEWS ACCOUNTS
Detailed news articles in legitimate print or electronic media indicating gang membership or association.

n

1 point

CONTACT WITH KNOWN GANG MEMBERS/ASSOCIATES (FIO}
Visiting, corresponding, or engaging in financial transactions with gang members or associated.

n 2 points per Interaction or transaction
DOCUMENTED ASSOCIATION (BPD 1.1/lncident Report)
Walking, eating, recreating, communicating, or otherwise associating with confirmed gang members or associates.

n

If not In custody or Incarcerated: 4 points per Interaction or transaction

n If In custody or Incarcerated: 4 points per Interaction or transaction
MEMBERSH IP DOCUMENTS
Possession of membership documents, certificate of ran!< or title, letter of introduction or recognition.

n 9 points
INFORMATION DEVELOPED DURING INVESTIGATION AND/OR SURVEILLANCE

n Spoinls
INFORMAITON NOT COVERED BY OTHER SELECTION CRITERIA

http ://crimentelweb/GANG/verification. asp?gang_personid=5356&username=goodbacl&v... 6/28/2010

 VERIFY

Page 3 of3

n 1 point
total:

lo

The Gang Assessment Database shall not contain any information that has been obtained in violation of any federal, state or local
law or ordinances .

http://crimentelweb/G ANG/verification. asp? gang_personid=53 56&username=goodbacl&v... 6/28/20 l 0

 EXHIBIT 

ACLU

AMERICAN CU/IL UBERTIES UNION

FOUNDATION

Adriana Lafaille. Staff Attorney

Massachusetts

(617) 482-3170 ext. 308
alafaille@aclum.org

May 21, 2018
Boston Police Department
Legal Department
One Schroeder Plaza
Boston, MA 02120
Re:

Public Records Request

To whom it may concern:
This letter constitutes a request under the Public Records Law, G.L. c. 66, § 10 for
documents made or received by the Boston Police Department (BPD) and the
Boston Regional Intelligence Center (BRIC). The request is made on behalf of the
American Civil Liberties Union of Massachusetts, Kids In Need of Defense, the
Justice Center of Southeast Massachusetts, National Lawyers Guild Massachusetts Chapter, Justice Center of Southeast Massachusetts, Ascentria Care
Alliance, Committee for Public Counsel Services, Greater Boston Legal Services,
Children's Law Center of Massachusetts, Massachusetts Law Reform Institute,
Muslim Justice League, Community Legal Services and Counseling Center, the
Charles Hamilton Houston Institute for Race and Justice, Political
Asylum/Immigration Representation Project, the Young Abolitionists, and Families
for Justice as Healing.
This request seeks information about the databases in which the BPD and BRIC
track information about alleged gang members. In the following request, any
reference to a "gang or other relevant database" refers to the Gang Assessment
Database and any other database or system of keeping criminal or other
intelligence information in which notations are made about any individual's:
a. gang membership, gang affiliation, or gang association;
b. admissions of gang membership, or identification as a gang member,
associate, or affiliate by another law enforcement agency, by an
informant, or in a news account;
c. contact or association with gang members, including financial
transactions, walking, eating, recreating or communicating;
d. possession or use of gang paraphernalia or gang identifiers, use of
gang-related tattoos, or posting of gang-related material on social
media;
e. presence in a gang-related photograph or documents;

ACLU Foundation of Massachusetts 211 Congress St., Boston, MA 02110 • 617.482.3170 • www.aclum.org
· ~l)

 Page 2

Boston Police Department
May 21, 2018

f. involvement with gang publications, or possession of gang publications
or documents, including court or investigative documents; or
g. involvement in a gang-related threat, assault, or incident, including as
a victim or target.

Requested documents:
1.
By-laws, policies, procedures and training: For any gang or other
relevant database as defined in this request, please provide the by-laws, operating
procedures, and user agreement for the database, as well as all other documents,
rules, policies, procedures, or training relating to:
a. the entry of individuals or information into the database;
b. the validation of information included in the database;
c. the determination of probable cause, reasonable suspicion, criminal
predicate, or legitimate intelligence purpose;
d. the determination of whether information has been obtained in
violation of federal, state, or local law or ordinance;
e. the determination of information's relevancy or importance;
f. notification to individuals of their inclusion in the database;
g. the correction of errors or destruction of misleading, obsolete, or
unreliable information;
h. data retention or purging of information;
i. access to the database and/or to the facilities in which the database is
kept or accessed;
J. remote access to the database;
k. the dissemination of information, both within the agency and to other
entities;
I. information exchange with any other information systems;
m. the determination of another entity or individual's need to know or
right to know information contained in the database;
n. the privacy and security of information included in the database;
o. audits or inspection of information provided, analyzed, or verified by
participating agencies;
p . the software and hardware used for the database;
q. safeguards to protect against unauthorized access or damage;
r. sanctions for unauthorized ac~ess, use, or disclosure of information in
the database; or
s. any plan for compliance with 28 C.F.R. § 23.20.

2.
Database characteristics and access: For any gang or other relevant
database as defined in this request, please provide all documents containing
information relating to:
a. the total number of individuals in the database;

 Page 3
Boston Police Department
May 21, 2018

b. the demographic breakdown of persons listed in the gang database,
including by race, national origin, gender, zip code of residence, or age;
c. the funding of the database;
d. the agency or individual with official responsibility for the database,
including responsibility for compliance with the requirements of
federal, state, and local law or ordinance;
e. the number of authorized users of the database, including the number
who have each type or level of permission;
f. the agencies and/or individuals and their affiliated agency authorized
to read, search, print, submit, receive, or edit information in the
database;
g. the agencies and/or individuals and their affiliated agency who may log
on to the database;
h. the agencies and/or individuals and their affiliated agency who may
access the database remotely;
i. the agencies to which the rules, policies, procedures, and training
materials described in paragraph 1 are provided;
j . remote or other access to the database by agents of the Department of
Homeland Security (including its sub-agencies like Immigration
Customs Enforcement and its components), and the levels of
permission of these agents;
k. dissemination of information from the database to agents of the
Department of Homeland Security, including its sub-agencies like
Immigration Customs Enforcement and its components;
1. any agreement, whether formal or informal, to exchange information
in the database with any other federal, state. regional or other
information system;
m. any disciplinary proceeding or sanctions issued for unauthorized
access, utilization, or disclosure of information contained in the
database;
n. any audit of the BPD's, BRIC's or any other participating agency's
compliance with criteria for entry and dissemination of information in
the database;
o. any record of waiver by the Attorney General under 28 C.F.R.
§ 23.20(0) of any requirements of§ 23.20; or
p. the role of the database with respect to reducing violent crime,
dismantling gangs, or aiding in criminal prosecutions or immigration
enforcement.
3.
Audits and compliance records: For any gang or other relevant database
as defined in this request, please provide all records relating to audits or compliance
with regard to whether:

 Page4
Boston Police Department
May 21, 2018

a. entries in databases are compliant with the requirements of federal,
state, and local law or ordinance;
b. FIOE reports have been inspected by a BPS detective supervisor for
legibility, completeness, and articulation of justification for the FIOE;
c. field encounters, interactions, stops, searches, and frisks are
conducted, recorded, and entered in compliance with BPD Rule 323
and federal and state laws and regulations, including a record of any
FIOEs found not to be compliant;
d. any dissemination of contents of a database is done in compliance with
BPD Rule 323 and 28 C.F.R. § 23.20; or
e. reports sent from Boston Public School employees or Boston School
Police comply with state and federal laws and regulations, including
34 C.F.R. § 99.31 and 603 Mass Code Regs. § 23.07.
4.
Database entries: For any gang or other relevant database as defined in
this request, please provide the record of each individual included in the database,
including all Profile Page I Face Sheets and Gang Member Verification Reports
described in Rule 335 and any school incident reports. Please omit or redact the
individual's name, day and month of birth, and street address (number a:i;id street
only), but do not omit or redact year of birth (unless age is separately provided). zip
code, race, ethnicity, place of birth, national origin, and bases for point accrual.
5.
Records of dissemination of information: For any gang or other relevant
database as defined in this request, please provide the record, under 28 C.F.R.
§ 23.20(g), of every instance since January 1, 2015 in which information from the
database has been disseminated, including the reason for the release of the
information, the receiving agency and individual, and date of the dissemination.

6.
Policies and guidance regarding identification and monitoring of
gang members: Please provide all rules, policies, procedures, training, guidance,
formal or informal resources, and other documents relating to:
a. the clothing, appearance, activities, frequented locations, and
demeanor indicative of any gang membership or association, including
of "MS13," "MS", "Salvatrucha", "18", "Barrio 18", "Calle 18", or any
affiliates;
b. the preparation, presentation, use, storage, and dissemination of "gang
intelligence reports";
c. the presentation, use, storage, and dissemination of"gang intelligence
reports" compiled by Boston Police Department School Police Unit,
Boston School Police and School Resource Officers, the Massachusetts
state police, other local police departments, or other law enforcement
agencies; or

 Page 5
Boston Police Department
May 21, 2018

d. direct communication with Department of Homeland Security
(including its sub-agencies like Immigration Customs Enforcement and
its components) about an individual about whom there is an allegation
of gang membership or association.

7.
Policies and guidance regarding identification and monitoring of
gang members in schools: Please provide any rules, policies, procedures,
training, guidance, formal or informal resources, and other documents provided to
the Boston Police Department School Police Unit, Boston School Police and School
Resource Officers on:
a. the clothing, appearance, activities, frequented locations, and
demeanor indicative of any gang membership or association, including
of "MS13," "MS", "Salvatrucha", "18", "Barrio 18", "Calle 18", or any
affiliates;
b. the preparation, presentation, use, storage, and dissemination of "gang
intelligence reports";
c. the Gang Assessment Database;
d. assessing and determining information that is necessary to protect the
health or safety of a student or individual;
e. direct communication with Department of Homeland Security
(including its sub-agencies like Immigration Customs Enforcement and
its components) about a student or individual about whom there is an
allegation of gang membership or association; or
f. the circumstances under which information may be shared with nonschool individuals or entities, the means for sharing that information,
and the limits on the authority to share information.
Because this request involves a matter of public concern and because it is made on
behalf of nonprofit organizations, we ask that you waive any copying costs
pursuant to 950 C.M.R. § 32.06(5).
Please provide documents in electronic format where possible. Should you
determine that some portion of the documents requested are exempt from
disclosure, please release any reasonably segregable portions that are not exempt.
In addition, please note the applicable statutory exemption and explain why it
applies to the redacted portions. As you know, a custodiap of public records shall
comply with a request within ten days after receipt.
Please reply to this request by contacting Adriana Lafaille at alafaille@aclwn.org or
617-482-3170 x 308.

 Page6

Boston Police Department
May 21, 2018

Thank you for your assistance. We look forward to your response.

Sa~

Adriana~

ACLU Foundation of Massachusetts, Inc.
Elizabeth Ahmadi
Ascentria Care Alliance
David Harris
Charles Hamilton Houston Institute for Race and Justice
Claire Valentin
Children's Law Center of Massachusetts
Wendy Wayne
Committee for Public Counsel Services
John Froio
Community Legal Services and Counseling Center
Mallory Hanora
Families for Justice as Healing
Nancy Kelly
Greater Boston Legal Services
Emily Leung
Justice Center of Southeast Massachusetts
Elizabeth Badger
Kids In Need of Defense
Iris Gomez
Massachusetts Law Reform Institute
Shannon Al-Wakeel
Muslim Justice League

 Page 7
Boston Police Department
May 21, 2018

Urszula Masny-Latos
National Lawyers Guild - Massachusetts Chapter
Anita Sharma
Political Asylumllmmigration Representation Project
Alex Ponte-Capellan
Young Abolitionists

 EXHIBIT 

D E

P

A R T M E N

T

1 S c llroeder Pla z a , Boston , MA 02120-2014

Via Email Only:
alafai lle(tV,aclum .org

July 3, 2018
Adriana Lafaille, Esq.
Staff Attorney
ACLU Foundation of Massachusetts
211 Congress Street
Boston, MA 02110
Re:

Your Public Record Request

Dear Attorney Lafaille,
The Boston Police Deprutment ("Department") has received your request for "information about
the databases in which the [Deprutment] and [Boston Regional Intelligence Center or] BRIC
track information about alleged gang members." Please see the Depa1tment's response below.
Relative to item one (1) of your request, which seeks "the by-laws, policies, procedures, and
training" as well as the "user agreement for the database," attached please see the following:
Boston Police Depaitment Rule 335 - Gang Database Assessment, which includes a blank
verification; the BRIC Privacy, Civil Rights, and Civil Libe1ties Protection Policy; Special Order
13-009 Mobile Device Policy; the Data Use Agreement with the MBTA Transit Police; and the
Data Use Agreement with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Relative to item two (2) of your request seeking "database characteristics" and contains subparts
(a) through (p), item (3) of your request seeking "audits and compliance records," and item five
( 5) seeking "records of dissemination of information" from the gang database from January 1,
2015 to the present, be advised that the Depa1tment is still in the prncess of reviewing these
requests in order to determine how to search for and segregate responsive material. As such, per
our conversation last week, the Department will supplement its response to these items once it is
has identified the potentially responsive materials.
Relative to item four (4) seeking "database entries" including "the record of each individual
included in the database," be advised that the responsive material is not subject to public
disclosure. See G.L. c.4, s.7(c), (f) and (n). Beyond containing personal information and
information which if disseminated would also undermine the security and safety of persons and
buildings, the records you seek also contain material properly withheld under the investigative
exemption. The exemption allows investigative officials to withhold materials that could
compromise investigative effo1ts if disclosed. Accordingly, a records custodian may withhold
information that could potentially ale1t suspects to the activities of investigative officials, and
similarly, records custodians may withhold confidential investigative teclmiques indefinitely

Moyor Mortin J. Walsh

 since their disclosure would prejudice future law enforcement efforts. Certainly, public
dissemination of all entries in the gang database would ale1t members of the public, including
those involved in gang activity, of the Department's investigative activities and would therefore
interfere with the Department's ability to identify gang activity and conduct investigations going
forward . As such, this request must be denied.
In response to item six (6) and seven (7), both of which seek various records "regarding
identification and classifying of gang members," the Depa1tment maintains that gang database
records beyond those provided in response to item one (l) are exempt from public disclosure.
See G.L. c.4, s.7(c), (f) and (n). Beyond containing personal information and information which
if disseminated would also lmdermine the security and safety of persons and buildings, the
records you seek also contain material properly withheld under the investigative exemption. The
exemption allows investigative officials to withhold materials that could compromise
investigative effo1ts if disclosed. Accordingly, a records custodian may withhold any
information relating to an ongoing investigation that could potentially ale1t suspects to the
activities of investigative officials, and similarly, records custodians may withhold confidential
investigative techniques indefinitely since their disclosure would prejudice future law
enforcement efforts. Certainly, public dissemination of documents "regarding identification and
monitoring of gang members" would hamper the Depattment's ability to identify gang activity as
well as conduct criminal investigations going forward. As such, these requests must be denied.
Please note that this office does not provide legal assistance, opinions, or explanations about
police policy to the public and will not respond to any such request. You may appeal this
response to the Supervisor of Records. G. L. c. 66, § lOA (c); G. L. c. 66, § lO(b)(ix); 950 CMR
32.08; 950 CMR 32.08(1)(h). Your attention to this matter is appreciated.
Sincerely,

Cf(A_c!la '?- . ~~~
Jaclyn R. Zawada
Staff Attorney
Office of the Legal Advisor
cc:

Shawn A. Williams, Esq., Director of Public Records, City of Boston (Via Email Only)
Mattha DeMaio, Director of Public Information, Boston Police Department (Via Email Oni)~

 EXHIBIT 

A•lERICAN CIVILLIBERTIES UNION
FOUNDATION

~\:la .

achu se tt s

Adriana Lafaille
Staff Attorney
(617) 482-3170 x308
alafaille@aclum.org

August 8, 2018
Via Email
Jaclyn R. Zawada
Staff Attorney
Office of the Legal Advisor
Boston Police Department
1 Schroeder Plaza
Boston, MA 02120
jaclyn.zawada@pd.boston.gov
Re:

May 21, 2018 Public Records Request

Dear Attorney Zawada:
We have received your July 3, 2018 response to our May 21, 2018 public records
request. I understand based on our June 28, 2018 phone conversation that your
response is on behalf of both the Boston Police Department and the Boston Regional
Intelligence Center.
In order to satisfy their obligations under G.L. c. 66, § 10, please continue providing
documents in response to paragraph 1 of our request, provide documents in
response to paragraphs 2, 3, and 5 of our request, and reconsider the denial of
records responsive to paragraphs 4, 6, and 7 of our request.
Paragraph 1: You have provided only five documents in response to our request for
policy and other documents related to gang or other relevant databases. Two of
these documents appear to be four-page documents, but only the first two pages are
provided. In addition, while our request encompasses all databases in which gang
information is kept-not only the gang assessment database-you have provided
only one document specifically relating to the gang assessment database and no
documents about any other database. Please complete the search for responsive
documents and inform us of when you will be able to complete production of
responsive documents.

ACLU Foundation of Massachusetts 211 Congress St., Boston, M A 02110 • 617.482.3170 •
www .acl um .org

 Page 2
Jaclyn R. Zawada
August 8, 2018

Paragraphs 2, 3 and 5: Your July 3, 2018 response indicates that you were
continuing to search for documents responsive to paragraphs 2, 3 and 5. Please
provide these documents promptly, and inform us of when you will be able to
complete production.
Paragraphs 4, 6, and 7: You cite G.L. c. 4, § 7, Twenty-sixth (c), (f), and (n) as
justification for withholding records responsive to paragraphs 4, 6 and 7 of our
request. These portions of our request seek gang and other database records,
policies and guidance regarding identification and monitoring of gang members, and
policies and guidance regarding identification and monitoring of gang members in
schools. The exemptions cited in your July 3 letter do not justify a blanket denial of
these records.

Subsection (c) and (n) are wholly inapplicable. Subsection (c) exempts from the
definition of public records "materials or data relating to a specifically named
individual, the disclosure of which may constitute an unwarranted invasion of
personal privacy." G.L. c. 4, § 7, Twenty-sixth (c). This exemption has no relevance
to our request, as we specifically asked that each individual's name, day and month
of birth, and street address be omitted or redacted from responsive documents. See
Champa v. Weston Pub. Sch., 4 73 Mass. 86, 98 (2015) ("[O]nce the
appropriate redactions of personally identifiable information are made, the [r ecords]
will no longer fit within the scope of exemption (c) and must be disclosed.").
Subsection (n) exempts "blueprints, plans, policies, procedures and schematic
drawings ... or any other records relating to the security or safety of persons or
buildings ... the disclosure of which, in the reasonable judgment of the record
custodian ... is likely to jeopardize public safety or cyber security." G.L. c. 4, § 7,
Twenty-sixth (n). This exemption is also inapplicable to the records we requested.
As recognized by the Supreme Judicial Court, exemption (n) was enacted on the
one-year anniversary of the September 11 terrorist attacks, and is intended t o
protect r ecords "a terrorist would find useful to maximize damage." People for the
Ethical Treatment of Animals, Inc. v. Dep't of Agric. Res., 477 Mass. 280, 289 (2017).
The SJC has endorsed a "narrow interpretation of exemption (n)" and has limited
its applicability to records "likely to jeopardize public safety in a similar way to one
of the examples listed," i.e. blueprints, plans, and schematic drawings that r elate to
internal layouts and structural elements of public buildings and infrastructure or
policies and procedures for security measures and emergency preparedness. Id. at
288. The Court specifically rejected a broad reading of the "any other records" clause
of exemption (n). Id. It also rejected the suggestion that the exemption's reference to
the "reasonable judgment" of the record custodian entails any sort of deference to
the custodian's determination. Id. at 291. The records we requested are
fundamentally dissimilar to the blueprints and emergency preparedness procedures
contemplated by exemption (n), and the exemption therefore has no applicability to
our request.

 Page 3
Jaclyn R. Zawada
August 8, 2018

Subsection (f) exempts "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,
Twenty-sixth (f). Because there is a presumption under the public records law that
the record sought is public, the Boston Police Department bears "the burden of
proving with specificity" that the exemption for investigatory materials applies to
the records requested. See Globe Newspaper Co. v. Police Com 'r of Boston, 419 Mass.
852, 857 (1995) (internal quotation marks omitted). "[G]eneralized arguments in
support of why the materials should not be disclosed" are insufficient to meet the
Department's burden; the Department must instead specifically demonstrate "how
disclosure 'would probably so prejudice the possibility of effective law enforcement
that such disclosure would not be in the public interest."' Doe v. Bright Horizons
Children's Centers, Inc., No. CIV. A. 96-6151, 1998 WL 408965, at *2 (Mass. Super.
July 2, 1998) (quoting G.L. c. 4, § 7). There is no ''blanket exemption" for
investigatory records kept by police departments, and the potential prejudice must
be demonstrated on a case-by-case basis. See Globe Newspaper, 419 Mass. at 859.
The SJC has described the purposes of exemption (f) as:
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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).
While it may be appropriate for the department to redact and withhold certain
documents under subsection (f), the Department could not possibly meet its burden
demonstrating that exemption (f) applies to prevent the production of all documents
responsive to paragraphs 4, 6 and 7 of our request. Your response contains only a
general assertion that disclosing the records would "alert members of the public ...
of [sic] the Department's investigative activities" and ''hamper the Department's
ability to identify gang activity." But you do not attempt to demonstrate with
specificity how disclosure would "prejudice the possibility of effective law
enforcement," see Bright Horizons, 1998 WL 408965, at *2, or how the purposes
identified by the SJC would be frustrated by disclosure, see Bougas, 371 Mass. at
62. The possibility of prejudice is especially remote given our request that
personally-identifying information be redacted from the records disclosed.
Importantly, you do not assert that there is a specific, ongoing investigation that
may be compromised by the release of the records. Compare id. (finding records fit

 Page 4
Jaclyn R. Zawada
August 8, 2018

within exemption where they "were prepared by police officers in connection with
their investigation of an incident which led to criminal proceedings"). Given that
one of the primary objectives served by exemption (f) is the "avoidance of premature
disclosure of [law enforcement's] case prior to trial," the exemption is clearly
designed to protect information related to a specific investigation of c1·iminal
activity, not general information-gathering unrelated to a particular suspected
crime. See id.; see also Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600 (2004) (records
did not fit within exemption in part because government failed to submit proof of
"how the disclosure would foreclose any future criminal prosecution"). Because
exemption (f) does not justify a blanket denial of paragraphs 4, 6 and 7 of our
request, please provide responsive documents, as well a timeline by which these
documents will be produced.
I look forward to your response. Please contact me if it would be helpful to discuss
any part of our request or this letter.

Adriana Lafaille
cc:

Elizabeth Ahmadi, Ascentria Care Alliance
David Harris, Charles Hamilton Houston Institute for Race and Justice
Claire Valentin, Children's Law Cente1· of Massachusetts
Wendy Wayne, Committee for Public Counsel Services
John Froio, Community Legal Services and Counseling Center
Mallory Hanora, Families for Justice as Healing
Nancy Kelly, Greater Boston Legal Services
Emily Leung, Justice Center of Southeast Massachusetts
Elizabeth Badger, Kids In Need of Defense
Iris Gomez, Massachusetts Law Reform Institute
Shannon Al-Wakeel, Muslim Justice League
Urszula Masny-Latos, National Lawyers Guild-Massachusetts Chapter
Anita Sharma, Political Asylum/Immigration Representation Project
Alex Ponte-Capellan, Young Abolitionists