Matthew S. Furman, Esq. v. Revere, City of - Police Department (SPR 20170730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2017 SPR17/730 Lieutenant Michelle Mangino Records Supervisor City of Revere Police Department 400 Revere Beach Parkway Revere, MA 02151 Dear Lieutenant Mangino: I have received the petition of Matthew S. Furman, Esq. of Todd & Weld, LLP appealing the response of the City of Revere Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Furman's former colleague Stesha A. Emmanuel, Esq. requested a copy of: 1. The Department's operational handbook, procedure manual, guidelines and policies from January 1, 2015 to the present (February 2017 - date of the request); including policies related to anonymous calls, gunshots, children, assessing whether calls are false, the reasonableness of force, detaining and/or arresting people, use of SWAT, use of tear gas and treatment of detainees; 2. The Department's operational handbook, procedure manual, guidelines and policies concerning the use of force from January 1, 2015 to the present; 3. The Department's operational handbook, procedure manual, guidelines and policies concerning the use of special weapons and tactics teams (SWAT) when responding to emergency calls from January 1, 2015 to the present; 4. All documents concerning the Revere Police Department's response to 22 Francis Street in Revere on October 16, 2016, including police reports, investigation reports, incident reports, media postings and narratives. On March 9, 2017, the Department provided all records regarding Request Number 2. The Department also provided responses on March 9, 2017 regarding Requests 3 and 4, stating that the request is approved in part and denied in part pursuant to Exemptions (b) , ( c ), (f) and (n) of the Public Records Law. It is my understanding from reading Attorney Furman's petition letter that the Department is working on Request No. 1. Attorney Furman appealed the Department's responses to Requests 3 and 4. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lt. Michelle Mangino SPRl 7/730 Page2 June 9, 2017 Status of the requester and reason for the request Attorney Furman should be advised that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Furman's purpose in the underlying event that precipitated the public records request has no bearing on the public status of any existing responsive records. It is also noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a} (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon

Lt. Michelle Mangino SPR17/730 Page 3 June 9, 2017 request. Please contact my office directly at the telephone number provided in this determination for further information. Request Number 3-Exemptions (b), (I) and (n) The Department claims that Exemptions (b), (f) and (n) of the Public Records Law apply to withhold certain of the records or certain portions of the records regarding Request Number 3. It is unclear which particular records or specific portions of the responsive records in Request Number 3 that each of the cited exemptions apply to and why. Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7 (26)(b ). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom oflnformation Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. I find that the Department has not satisfied its burden of proof under Exemption (b) in specifically explaining

Lt. Michelle Mangino SPR17/730 Page4 June 9, 2017 how release of the records or portions of the records is related solely to internal personnel rules and practices of the Department and how release of those internal personnel rules and practices of the Department will inhibit performance of necessary government functions. Exemption (I) Exemption (f), the "investigatory" exemption, permits the withholding of: 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). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). The Department has not sufficiently explained how Exemption (f) applies to any records withheld or portions of records that were redacted. Exemption (n) Exemption (n) applies to records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would

Lt. Michelle Mangino SPR17/730 Page 5 June 9, 2017 undermine public safety. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The Department has not met its burden of proving how release of records or portions of records to Attorney Furman will jeopardize or undermine public safety under Exemption (n). Request Number 4 - Exemptions (c) and (I) In your response to Request Number 4 you provided incident reports and you state that the request for Revere Police Call Number 16-34270 is approved in part and denied in part based on Exemptions (c) and (f). This Office has already referenced Exemption (f) concerning the Department's response to Request 3; therefore, the Department should further explain what records Exemption (f) applies to in Request 4 and why records were either redacted or withheld pursuant to Exemption (f). Exemption (c) Exemption (c) 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). 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). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).

Lt. Michelle Mangino SPRl 7/730 Page 6 June 9, 2017 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 of the 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 of Lynn, 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 of Exemption ( 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 that the Department did not meet its burden of explaining how Exemption (c ) specifically applies to the withheld records or portions of records. Specificity in responding and claiming exemptions The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § IO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's March 9th responses did not contain the specificity required in a denial of access to public records or portions of records. Instead, the Department's response merely cites exemptions without any further explanation as to the exemption's applicability to each of the requested records or portions ofrecords. Therefore, I find that the Department did not meet its burden in responding to the records requests in order to comply with the Public Records Law and its Access Regulations. Order Accordingly, the Department is hereby ordered to provide Attorney Furman with a detailed response to the requests, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Furman may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1 ).

Lt. Michelle Mangino SPRl 7/730 Page 7 June 9, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew S. Furman, Esq.