Janet H. Pumphrey v. Boston, City of - Police Department (SPR 20171579)

· The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 17, 2017 SPR17/1579 Martha J. DeMaio City of Boston - Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Janet Pumphrey, Esq. appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 22, 2017, Attorney Pumphrey requested a "copy of the complete records of the anonymous tips hotline regarding homicides in Boston - including names and descriptions of all reported suspects of murder cases -that were reported to the hotline from July 4, 2007 to September 30, 2007." The Department provided a response dated September 29, 201 7, in which it denied access to responsive records pursuant to Exemptions (c), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(c);(f);(n). Unsatisfied with the Department's response, Attorney Pumphrey petitioned this office and this appeal, SPRl 7 /1579, was opened as a result. The Public Records Law The Public Records Law stronglyfavors disclosure by creating a presui:nption 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). 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. 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

Martha J. DeM aio SPRl 7/1579 Page 2 November 17, 2017 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. The Department'.s September 29th response In its September 29th response, the Department indicated that "while the Department is in possession of potentially responsive tip reports, your request must be denied because such material is not a matter of public record .... Disclosure of any portion of responsive record would undermine both the Crime Stoppers_ Program in particular and the investigative efforts of the Department in general. The Crime Stoppers Unit engages the community and assists the Department in its mission to reduce violence and strengthen public safety initiatives. Disclosure of any part of the responsive records would discourage participation by members of the Public in the Crime Stoppers program, which will in tum limit the information shared with police and hinder law enforcement and criminal investigations." The Department indicated the following exemptions are applicable to withhold responsive records. Exemption (c) In the Department's September 29th response, it indicated its intent to withhold the records under Exemption ( c) of the Public Records Law. 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). Only the second clause is relevant to this appeal. 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 Comm1r of Real Property Dep1t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The second clause of Exemption (c) 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

Martha J. DeM aio SPRl 7/1579 Page 3 November 17, 2017 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) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. Under its Exemption ( c) claim, the Department indicated that if the reports were disclosed, it "may reveal personal identifying information of individuals who participated in and/or provided information to the Crime Stoppers Unit. This would constitute an unwarranted invasion of personal privacy. See G. L. c.4, § 7, cl. 26(c)." Exemption (f) The Department claimed it withheld the records under Exemption (f) of the Public Records Law. 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)(£). 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

Martha J. DeMaio SPRl 7/1579 Page4 November 17, 2017 effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department indicated that "the investigative exemption recognizes that disclosure of certain inv~stigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest ... Such is the case here." The Department indicated that "[b]ecause the Department and the Crime Stoppers Unit seek to protect confidential sources and to encourage members of the public to share information; the investigative exemption operates to protect the material sought." The Department indicated that "[t]he fact that the request seeks privileged information further illustrates the applicability of the investigative exemption. The confidential informant privilege 'not only protects the release of the name of the informant but also forbids the disclosure of details that Would in effect identify the informant' in a criminal case. Commonwealth v. John, 36 Mass. App. Ct. 702, 706 (1994). In other words, whether information identifies a confidential informant on its own or in combination with other information, it is likewise privileged. ... The Departments notes, moreover, that ev.en in a criminal case an informant's identity is not ordinarily discoverable if the informant is a 'mere tipster.' ... The confidential informant privilege thus lends further support for the Department's position that the records in their entirety are exempt from public disclosure per G. L. c.4, § 7, cl. 26(f)." Exemption (n) The Department claimed it withheld the responsive records pursuant to Exemption (n) of the Public Records Law. 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 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. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given

Martha J. DeMaio SPRl 7/1579 Page 5 November 17, 2017 the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. 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. Res., 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." Id. Under its Exemption (n) claim, the Department indicated that" ... disclosure of any portion of the responsive materials would jeopardize the safety and security of members of the public who provided information to the Crime Stoppers Unit. The effectiveness of the Crime Stoppers program centers on the ability to ensure that members.of the public may share information and remain anonymous. Understandably, anonymity is central to the safety and security of such individuals. If identified, there is a real likelihood individuals will be harmed and/or victimized in retribution for the information they shared with law enforcement. For this reason, responsive records are all exempt pursuant to G. L. c.4, § 7, cl. 26(n)." Burden of specificity; segregable portions \\Tith respect to Exemption (c), the Department's response does not sufficiently offer specific explanation as to how Exemption (c) permits non-disclosure of the records sought. It is unclear how disclosure of the withheld records would result in personal embarrassment to an individual of normal sensibilities. Further, the Department has not demonstrated how the withheld records contain intimate details of a highly personal nature, nor addressed whether this information is available from other sources. It is .unclear how basic information such as names of suspects constitute intimate details of a highly personal nature. In light of the PETA analysis, I find the Department has not met its burden to establish that Exemption ( c) applies to withhold the records in their entirety. With respect to Exemption (f), based on the Department's response it is unclear how releasing the names of suspects could lead to the identification of an informant. It is also unclear how providing the names of suspects "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f).

Martha J. DeMaio SPRl 7/1579 Page 6 November 17, 201 7 With respect to Exemption (n), it is uncertain how "records of anonymous tips hotline regarding homicides in Boston" pertain to the type of information contemplated in the first prong of the PETA analysis. The Department has not provided concrete examples of how the public's safoty would be jeopardized by releasing the records in their entirety or in redacted form. As such, I find the Department has not provided "sufficient factual heft" to establish how disclosure of the information is likely to jeopardize public safety or cyber security. Further, it is unclear why identifying information cannot be redacted and the segregable portion provided. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289- 90 (the statutory exemptions are narrowly construed and are not blanket in nature). In light of the above reasons, I find that the Department has not met its burden of specifically detailing how Exemptions (c ), (f), and (n) allow the Department to withhold the requested records in their entirety, and why the Department cannot provide Attorney Pumphrey with a portion of the information. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Department would provide a supplemental response. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provides said response 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Janet Pumphrey, Esq.