Herman, Colman v. Massachusetts Bay Transportation Authority - Transit Police Department (SPR 20140308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April29, 2015 SPR14/308 Ms. Lurleen Gannon, Esq. Office of the General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Gannon: I have received a petition from Colman M. Herman requesting further consideration of a previously closed public records appeal. See SPR 14/308 Determination of the Supervisor of Records (July 21, 2014). Specifically, subsequent to my administrative order, the Massachusetts Bay Transportation Authority Transit -Police Department (MBT A Police) produced redacted copies of records responsive to Mr. Herman's public records request. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Herman requested copies of records associated with an incident that led to a citizen's complaint filed against the MBTA Police. The MBTA Police denied Mr. Herman's request in its entirety pursuant to Exemption (c), the privacy and Exemption (f), the investigative exemption of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). In my administrative order I found that the MBTA Police's response failed to meet the burdens of specificity outlined in the Public Records Law and its Access Regulations (Regulations). Nearly three months after my order the MBTA Police complied with my order and provided Mr. Herman responsive records, consisting of an investigation report and two witness statements. The records were redacted by the MBTA Police, again citing Exemptions (c) and (f) of the Public Records Law. As in the denial, the response merely cited the exemptions, absent of any specificity to justify the redactions. Mr. Herman appealed. To assist in my review I ordered the MBTA Police to provide this office with an un redacted copy of the investigation report for an in camera review. See 950 C.M.R. 32.08(6). After nearly two months I received a copy of the unredacted records. The records will be returned to the MBTA Police under separate cover. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.set.state.ma. us/pre

Ms. Lurleen Gannon, Esq. SPR14/308 Page Two Apri129, 2015 Exemption (c) The MBTA's response cites the second clause of Exemption (c) ofthe Public Records Law as a basis for withholding information from the internal affairs records. Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause of Exemption (c) is applicable to this appeal. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623,625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause ofExemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. I find the MBT A Police has failed to meet its burden in establishing that any redacted portion from the responsive records contains an "intimate detail." Accordingly, whereas the MBTA Police has failed to establish the criteria under the first part of the two-step test, a review of the public interest in disclosure is not required. Accordingly, the MBTA has not met its burden and may not withhold any of the redacted information pursuant to Exemption (c). Exemption (f) The MBTA Police also claimed that Exemption (f) applies to withhold the redacted information, with the addition of the identifying information of the complainant. Exemption (f), the investigatory exemption, allows investigatory officials to withhold: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f)

Ms. Lurleen Gannon, Esq. SPR14/308 Page Three April29, 2015 This exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). (emphasis added). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas v. ChiefofPolice, 371 Mass. 59,62 (1976). The disclosure ofthe names of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Accordingly, I find the MBTA Police is permitted to withhold the identifying information regarding the complainant pursuant to Exemption (f). I find, however, that the MBTA Police has provided no information to support the withholding of identifying information regarding the MBTA Police officers who were either the subject of the complaint, or a witness to the incident. The MBTA Police officers are not voluntary witnesses for Exemption (f) purposes. Accordingly, the MBTA has not met its burden and may not withhold any of the redacted information pursuant to Exemption (f), with the exception of information that would identify the citizen complainant. Conclusion I find that the responsive records are public records and must be disclosed without redaction, with the exception ofthe identity ofthe complainant. The MBTA is hereby ordered to provide the records to Mr. Herman within t~n (1 0) days, prepared in a manner consistent with

Ms. Lurleen Gannon, Esq. SPR14/308 Page Four April29, 2015 this order, the Public Records Law and its Access Regulations. Accordingly, this administrative appeal remains closed. Supervisor ofRecords cc: Mr. Colman M. Herman