Quemere, Andrew v. Office of the District Attorney for the Essex District (SPR 20140284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 3, 2014 SPR14/284 Mr. Andrew Quemere P.O. Box 5171 Framingham, MA 01701 Dear Mr. Quemere: This office has received your petition appealing the response of the Essex County District Attorney's Office (Office) to your request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records relating to the investigation into a fatal shooting of a specifically named individual. Additionally, you requested a list of cases involving three specifically named City of Lynn police officers. In response to your request and upon payment of the estimated cost to be incurred, the Office provided you with copies of records responsive to your request. In an April 8, 2014 letter to you, the Office provided you with additional justification for the information that was redacted from the responsive records. In these communications, the Office initially stated that it withheld responsive information from disclosure pursuant to Exemptions (a), (c) and (f) of the Public Records Law. In your petition to this office, you have appealed the Office's withholding of the following information: 911 calls and police radio transmissions, emails related to the investigation, certain photographs and video, a specific witness statement, and video recordings of citizen witness statements. Exemption (c) The applicability of Exemption (c) is first considered. This exemption applies to: 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 G. L. c. 4, § 7(26)(c) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Andrew Quemere SPR14/284 Page Two June 3, 2014 This exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). The second clause only protects intimate details of a highly personal nature while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Att'y Gen. v. Ass't Comm'r of the Real Property Dep't of Boston, 380 Mass. 623, 625 (1980). The types of personal information which the second clause ofthis exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2. In a May 21, 2014 telephone conversation with an attorney on my staff, Assistant District Attorney David F. O'Sullivan (ADA O'Sullivan) confirmed that responsive photographs/video and the witness statement have been withheld pursuant to the second clause of Exemption (c). According to ADA O'Sullivan, the photographs depict the inside of the victim's home after the incident had occurred. The victim's family still resides at this location and the disclosure of responsive photographs/video would provide an intimate view into their private residence. ADA O'Sullivan further stated that the withheld witness statement was provided by a minor child. It is my finding that the Office may permissibly withhold these responsive records pursuant to the second clause of Exemption (c). While the privacy interests of the victim have ceased upon death, those interests remain for the victim's family. The disclosure of the responsive photographs/video would likely infringe upon the interests of the victim's family to maintain a private residence. The public's interest in the disclosure of these records does not outweigh the privacy interests of the family to maintain their residence without public scrutiny. Furthermore, the responsive witness statement includes information relating to the identity and observations of a minor child. The privacy exemption is specifically designed to protect information relating to individuals under the age of eighteen (18). Due to the age of the individual, the witness statement is considered an "intimate detail of a highly personal nature" and the public interest in disclosure does not outweigh this individual's privacy interests. Exemption (f) Exemption (f) applies to: 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

Mr. Andrew Quemere SPR14/284 Page Three June 3, 2014 G. L. c. 4, § 7(26)(±) Exemption (t) may be used by investigative officials ifthe disclosure of records could have an adverse effect on an effective law enforcement investigation. WBZ-TV 4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990). Furthermore, this exemption may restrict the disclosure of confidential investigative techniques, procedures or sources of information. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). The exemption may also be used by investigative officials to encourage individual citizens to come forward and speak freely concerning matters under investigation. Id. According to ADA O'Sullivan, the Office has withheld a single 911 recording, responsive email messages, and video recordings of citizen witness statements pursuant to this exemption. With respect to the 911 tape and video recordings, ADA O'Sullivan stated that the disclosure of these records would reveal the identities of witnesses who had come forward to provide information regarding the investigation. Exemption (f) permits a records custodian to withhold information that may sufficiently protect the identity of a complainant or witness. It is my understanding that the identities of these individuals would be known upon the disclosure of these records and that the responsive records cannot be redacted in a manner that would protect the identities of these individuals. ADA O'Sullivan also confirmed with this office that there are no transcripts that exist for either the 911 call or the video recordings. Accordingly, the Office may permissibly withhold these records in their entirety pursuant to Exemption (f) in order to protect the identities of these individuals. According to ADA O'Sullivan, the responsive emails relate to actions and recommendations that were taken during the course of an investigation, the disclosure of which may have an adverse effect on this and potentially other law enforcement efforts. It is my finding that the Office may also permissibly withhold responsive email messages pursuant to this exemption. Whereas the Office may permissibly withhold responsive records pursuant to Exemptions (c) and (f), an analysis as to the applicability of Exemption (a) i not required. Accordingly, this administrative appeal is closed. Supervisor of Records cc: Mr. David F. O'Sullivan, Esq.