Seth Kershner v. Massachusetts State Police (SPR 20171573)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 20, 2017 SPR17/1573 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 the after-action review reports of the Special Tactics and Operations (STOP) Team from October 2016 through December 2016. Unsatisfied with the Department's response, Mr. Kerhsner petitioned this office and this appeal was opened as a result. Previous appeal This request was the subject of a previous appeal dated October 6, 2017. See SPRl 7/1360. In my October 6th determination, I found that the Department did not meet its burden in withholding content from the reports, in their entirety, pursuant to Exemptions (a), (c), (f) and (n) of the Public Records Law. Accordingly, the Department was ordered to provide a supplemental response to support its redactions. In its October 24th response, the Department continues to withhold content from the reports pursuant to Exemptions (a), (c), (f) and (n), in addition to withholding content in its entirety from a December 24, 2016 report. G. L. c. 4, § 7(26)(a), (c), (f) and (n). 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). 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. SPRl 7/1573 Page 2 November 20, 2017 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). In his September 22nd petition, Mr. Kershner informed this office that he does not challenge the Department's decision to redact Criminal Offender Record Information (CORI) under Exemption (a), nor does he challenge the redaction of the names of the subjects of the reports under Exemption (c). Mr. Kershner appealed the redaction of the entire narrative section of each of the after-action reports because he believes the Department has made it impossible for the public to understand how often STOP team members use force, employ no-knock warrants, and respond to other situations such as attending to suicidal persons. 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 combination of information. 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. S· 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.

Siobhan E. Kelly, Esq. SPRl 7/1573 Page 3 November 20, 2017 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). 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 , 4 77 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 information 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 and October 24th responses 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 of the records provided to Mr. Kershner reveals that the Department redacted full pages of the reports. I find that the Department did not meet its burden of withholding all of the information pursuant to Exemption (c). The Department must demonstrate why it cannot redact personal information. 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). Exemption (I) 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

Siobhan E. Kelly, Esq. SPRl 7/1573 Page 4 November 20, 2017 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). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 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. 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 stated in its September 20th and October 24th responses that the Department is engaged in active criminal investigations and, as a result, some of the after-action reports contain information identifying the subject of the investigation, and the location and time where a portion of an investigation occurred. The Department 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. It is your contention 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. In the October 6th determination, I found that the Department did not meet its burden of demonstrating how disclosing the "nature" of the STOP Team's deployments could jeopardize or hinder the Department's investigative efforts. Nor has the Department proved that disclosure of certain information in the narrative section will reveal confidential investigative techniques or procedures, whereas much of the information concerning how STOP Team's operate has been covered by print and television news media. The Department states that no portion of the narrative in the reports can be disclosed to the public. As ordered in my October 6th determination, the Department may redact the names of the witnesses, and disclose the nature of the STOP Team's deployments. To date, the Department has not proved the reports' narrative sections, in their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (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 ).

Siobhan E. Kelly, Esq. SPRl 7/1573 Page 5 November 20, 2017 Exemption (n) The Department has redacted content from the reports pursuant to Exemption (n) of the Public Records Law. As stated in the Department's September 20th and October 24th responses, in their reasonable judgment, release of 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 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 "[bJ 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." Id. The Department's responses indicate that much of the information contained in the requested reports is exempt from disclosure under Exemption (n), "specifically the number of personnel deployed and the manner which missions are carried out to a given call and the location of their deployment." The Department further states, "[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 could potentially give an individual with criminal intent the tools necessary to anticipate and counter act the response by the STOP Team.

Siobhan E. Kelly, Esq. SPR17/1573 Page 6 November 20, 2017 The Department has redacted the entire narrative in each of the reports provided to Mr. Kershner. However, the Department has still 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, 378 Mass. at 289-90. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Accordingly, the Department is ordered to provide the report(s) in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the exemption claims made by the Department, the Department is hereby ordered to provide this office an un-redacted copy of the responsive after-action report from December 2016 for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the report, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous so that it may be utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with a further explanation of its position regarding the applicability of the exemptions to the responsive report. Please be advised that

Siobhan E. Kelly, Esq. SPRl 7/1573 Page 7 November 20, 2017 unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Seth Kershner