Richard C. Bardi v. Braintree, Town of - Police Department (SPR 20180224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 7, 2018 SPRlS/224 Lieutenant Kevin Ware Town of Braintree-Police Department 282 Union Street Braintree, MA 02184 Dear Lieutenant Ware: I have received the petition of Richard Bardi, Esq. on behalf of his client appealing the response of the Town of Braintree 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 February 12, 2018, Attorney Bardi requested an "unredacted copy of the accident report and any other related documentation; such as photographs and/or videos from the accident scene." The Department provided a response on February 13, 2018, which included responsive records in redacted form. The Department indicated that the redactions were made pursuant to Exemptions (a), (c), and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Attorney Bardi petitioned this office and this appeal, SPR18/224, was opened as a result. Purpose of request; identity of requester Please note 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 ofthe requester. See Bougas v, Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Bardi's purpose in making the request has no bearing on the public status of any existing responsive records. It should be 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 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

Lieutenant Kevin Ware SPR18/224 Page2 March 7, 2018 of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Bardi may wish to consider another means of seeking to obtain any existing responsive records. The Public Records Law The Public Reco.rds Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 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, § 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, § 10(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 February lfh response In its February 13, 2018 response, the Department indicated that it did not possess videos regarding the accident. The Department asserted that existing records "contained information that is not a matter of public record" and therefore redacted such information pursuant to the following exemptions. Exemption (a) The Department indicated that it redacted and/or withheld information pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is

Lieutenant Kevin Ware SPR18/224 Page 3 March 7, 2018 restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). · This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under its Exemption (a) claim, the Department indicated that it redacted the records because "CORI information, as defined by G.L. Chapter 6, § 167, is prohibited from disclosure per G.L. Chapter 6, § 172. Therefore, any information pertaining to specific individuals and the nature and disposition of their criminal offenses, sentencing, or incarceration has been redacted, where feasible, or withheld when redaction was not feasible." The Department has cited the Criminal Offender Record Information (CORI) statute as applicable to withhold the records pursuant to Exemption (a). CORI, which is statutorily exempt from disclosure, is defined as: [A] ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Intelligence information, which is not CORI and therefore not statutorily exempt from disclosure, is defined as: · [R]ecords and data compiled by a criminal justice agency for the purpose of criminal investigation, including reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual. Intelligence information shall also include records and data compiled by a criminal justice agency for the purpose of investigating a substantial threat of harm to an individual, or to the order or security of a correctional facility

Lieutenant Kevin Ware SPR18/224 Page4 March 7, 2018 G. L. c. 6, § 167. Exemption (c) The Department claimed it redacted records pursuant to Exemption (c) of the Public Records Law. 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). Second clause ofE xemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in riature and requires a balancing of the public's rightto know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r ofReal 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) (holding that a motor vehicle licensee has a privacy interest in disclosure ofhis 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.

Lieutenant Kevin Ware SPR18/224 Page 5 March 7, 2018 Under its Exemption (c) claim, the Department indicated that "the names and addresses of voluntary witnesses and juveniles" were redacted "as ... disclosure may constitute an unwarranted invasion of privacy." Exemption (f) The Department claimed it redacted and/or withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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 ifdisclosure 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 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. Under its Exemption (f) claim, the Department indicated that "the names and addresses of voluntary witnesses have been redacted ... as disclosure may prejudice effective law enforcement such that disclosure would not be in the public interest." The Department also indicated that "where it is not possible to redact the report in a manner as to avoid direct identification of the voluntary witness, this exemption allows the entire record to be withheld. In such instances, information leading to the identification of the witness has been redacted." Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10 (d )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... ");see also Globe Newspaper

Lieutenant Kevin Ware SPR18/224 Page 6 March 7, 2018 Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Although the Department cites G. L. c. 6, § 167 in support of its position to withhold records under Exemption (a), it is unclear what records the Department "withheld when redaction was not feasible." It is additionally uncertain how the withheld records each constitute CORI as described above and why the records could not be redacted to prevent the disclosure of any CORI information. With respect to Exemption (c), I find the Department has not met its burden of providing enough detail in its response to redact names and addresses of voluntary witnesses and juveniles under the privacy clause of Exemption (c). Under the PETA decision, the Department has not demonstrated that the names and addresses of voluntary witnesses and juveniles are intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. Also, the Department did not provide information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 291-92. · Although Exemption (f) permits redactions to preserve the anonymity of voluntary witnesses, based on the Department's response it is unclear whether the Department withheld identifying witness information or witness statements or both. It is also uncertain how there could be indirect identification of witnesses thereby making redactions inappropriate to preserve the anonymity of voluntary witnesses. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is ordered to provide Attorney Bardi responsive records, provided 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. The Department may file a request for reconsideration of this determination within ten business days within the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Bardi, Esq.