Seth Kershner v. Massachusetts State Police (SPR 20171360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 6, 2017 SPR17/1360 Siobhan E. Kelly, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Kelly: I have received the petition of Seth Kershner appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested a copy of"after-action" reviews ofthe Department's Special Tactics and Operations (STOP) Team from October 2016 through December 2016. The Department provided Mr. Kershner with records responsive to his request in a redacted format pursuant to Exemptions (a), (c), (f) and (n) of the Public Records Law. In his September 22nd petition, Mr. Kershner objects to the redactions of the "narrative section" of the reports. 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, § lOA( 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, § lO(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). 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

Siobhan E. Kelly, Esq. SPR17/1360 Page 2 October 6, 2017 Exemption (c) The Department has redacted the names, locations and diagnostic medical information of the subjects of the reports pursuant to Exemption (c). Mr. Kershner objects to the redaction of that information in combination as he contends that the privacy of the individuals could be protected by limiting the redactions to the subjects' names and street addresses. Exemption (c) permits the withholding of: 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. 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). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources: See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988).

Siobhan E. Kelly, Esq. SPR17/1360 Page 3 October 6, 2017 This clause requires a balancing test-which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department has redacted medical diagnostic irtformation concerning the mental health of individuals contained in the narrative sections of the after-action reports pursuant to Exemption (c). You state in your September 20th response to Mr. Kershner that the Department's STOP Team is deployed to criminal investigations, as well as to hostage situations or when individuals are experiencing a mental health crisis. You posit that an individual's mental health, particularly threats or attempts of suicide, are of a highly personal nature; therefore, the Department has redacted this type of information under both clauses of Exemption (c). A further review by this office ofthe records provided to Mr. Kershner reveals that the Department redacted full pages ofthe reports. It is unclear why the Department could not redact the individual's name and any identifying information under Exemption (c) to protect the individual's privacy or medical information. I find that the Department has not met its burden to withhold these records in their entirety under Exemption (c). Exemption (f) Exemption (f) 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). Redactionsmey_he-appropriatewheretheyser-Vetopresewe~-~mity--­ ofvoluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by- case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90.

Siobhan E. Kelly, Esq .. SPR17/1360 Page 4 October 6, 2017 The Supreme Judicial Court has stated that Exemption (f) aims at "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, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. The Department has redacted the names of witnesses, identifying details of witnesses, identities of subjects of investigations, including those who participated and cooperated in the investigation, and the locations where investigative measures were taken. You explain that disclosure of this information could jeopardize the safety of those individuals who assisted and cooperated in both completed and uncompleted investigations. The Department believes that disclosing the location and nature of those investigations that are presently ongoing would likely hinder the investigative efforts of the Department and would not be in the public interest. It is unclear how disclosure of the nature of the investigations would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. As a result, the Department has not met its burden of demonstrating how the reports' narrative sections, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm;r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § 10 ( a). Exemption (n) The Department has redacted content from the reports pursuant to Exemption (n) of the Public Records Law because, as stated in the Department's September 20th response, in the reasonable judgement of the Department the information is likely to jeopardize public safety. 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, cyber security 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 (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what

Siobhan E. Kelly, Esq. SPR17/1360 Page 5 October 6, 2017 degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. & another, 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[b] ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." ld. The Department's response indicates that much of the information contained in the requested reports is exempt from disclosure under Exemption (n), "specifically the number of personnel deployed to a given call and the location of their deployment." You further state, "[d ]isclosing the number of Troopers deployed on any given call could impact the safety and security of those officers as well as the individuals they offer assistance to." Further, you note this disclosure would allow an individual to determine the emergency preparedness of the Department. The Department has redacted all of the narrative in each of the reports provided to Mr. Kershner. However, the Department has not provided sufficient factual heft in meeting its burden of demonstrating how each report's narrative section in its entirety is exempt from disclosure under Exemption (n). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, whereas the Department will provide Mr. Kershner with a supplemental response to the request, I will consider this appeal closed with the proviso that the response is provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Sincerely, ~~ Supervisor of Records cc: Seth Kershner