Janet H. Pumphrey v. Boston, City of - Police Department (SPR 20180156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 15,201 8 SPR181156 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, 9 10A; see 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." Previous appeal This request was the subject of a previous appeal. SPRl711579 Determination of the Supervisor of Records (November 17,2017 ). I closed SPR1711579 with the proviso that the Department provide Attorney Pumphrey with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. Following the November 17 t" determination, the Department provided a supplemental response dated December 1 1,2017. The Department continues to deny access to responsive records pursuant to Exemptions (c), (f), and (n) of the Public Records Law. G. L. c. 4, 3 7(26)(c), (f), (n). Unsatisfied with the Department's response, Attorney Pumphrey petitioned this office and this appeal, SPR181156, was opened as a result. 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, 5 10A(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, 9 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

Martha DeMaio Page 2 February 15,2018 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, $ 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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, $ lO(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 January 1l thr esponse In its January 11 ,2018 response, the Department indicated that the Boston Police Crime Stoppers Program highlights unsolved crimes of violence in the local media and appeals to the public for information. The Department indicated that it has assured members of the public that their identity will remain anonymous when submitting tips to the Department. As such, "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. . . ." With respect to whether the records could be redacted, the Department indicated that "disclosure of any portion of responsive records would frustrate the entire Crime Stoppers Program." The Department also indicated that "disclosing any portion of the tip reports could, either alone or in conjunction with other information, serve to reveal victims, witnesses, complainants, and informants . . . [and] would hinder the abilities of the police who are currently investigating crimes." The Department indicated the following exemptions are applicable to withhold responsive records. Exemption (c) The Department asserted that it withheld responsive records pursuant to 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 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 38 8 Mass. 427,432-33 (19 83). Only the second clause is relevant to this appeal. Analysis under the second clause of Exemption (c) is

Martha DeMaio Page 3 February 15,201 8 subjective in nature and requires a balancing of the public's right to laow 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. 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 personal nature; and (3) whether the same information is available from other sources. 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 Id. disputes and reputation. 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 laowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Under its Exemption (c) claim, the Department indicated that "the reports if disclosed may reveal personal identifying information of individuals who participated in and/or provided information to the Crime Stoppers Program. Given that the individuals who participated in the Crime Stoppers Program did so in reliance on the Department's repeated assurance of anonymity, disclosure of any information they provided would constitute an unwarranted invasion of personal privacy. See G. L. c.4, 5 7, cl. 26(c)." Exemption 0 The Department indicated that it withheld responsive records pursuant to 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

Martha DeMaio Page 4 February 15,201 8 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. Bouaas v. Chief of Police of Lexington, 371 Mass 59,62 (1 976). 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. Under its Exemption (f) claim, the Department asserted that "the investigative exemption recognizes that disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest." The Department indicated that "disclosing any portion of the requested tip reports would reveal sensitive investigative information including the identities of victims, witnesses, complainants, and/or informants." The Department indicated that "[blecause 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 "[tlhe 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)." The Department indicated that "whether information identifies a confidential informant on its own or in combination with other information, it is likewise privileged. . . . Whether in a criminal proceeding or in the public records context, the Department's concern at the risks posed by revealing the requested tip reports is the same." As a result, "if any information from the tip reports is publicly disclosed . . . [it] would likely dissuade witnesses from future participation and would alert criminals and/or suspects to the investigation so that they could avoid police detection or otherwise hamper the investigation." Exemption (n) The Department claimed it withheld 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

Martha DeMaio Page 5 February 15,2018 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 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 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 Id. proposition that disclosure of the record is 'likely to jeopardize public safety.'" at 289-90. The PETA decision further provides that "[blecause 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 Id. determination given the context of the particular case." 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." The Department stated that in assuring participants anonymity, "[it] recognized that there can be a real risk to the physical safety of individuals who report crime to police. Thus, continuing to ensure anonymity of participants . . . is central to the safety and security of such individuals." The Department concluded that "[rlelease of the requested tip reports is likely to jeopardize public safety because, if identified, there is a real likelihood that participants, their family, friends, or other acquaintances will be physically or otherwise harmed and/or victimized as retribution for the information they shared with law enforcement. "

Martha DeMaio Page 6 February 15,201 8 Despite the Department's claims in its December 1 1,201 7 supplemental response, I find the Department has not met its burden to establish that the tip reports in their entirety, can be withheld pursuant to Exemptions (c), (f), and (n) of the Public Records Law. See SPRl711579 Determination of the Supervisor of Records (November 17,201 7); see also Reinstein, 378 Mass. at 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, 5 lO(a). In camera inspection In order to analyze the legal basis of the Department's position, it is the finding of this office that an in camera review of an unredacted copy of a representative sample of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Department. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 37 1 Mass. at 66 (explaining that "[oln doubtful questions an in camera inspection may be appropriate"). 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, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 3 84 Mass. 198,206 (1 98 1) (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. I understand Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the Department' is hereby ordered to provide this office with an unredacted copy of a representative sample of the responsive records without delay.

Martha DeMaio Page 7 February 15,201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: Janet Pumphrey, Esq.