Beth Eisenberg, Esq. v. Boston, City of - Police Department (SPR 20180755)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 8, 2018 SPRlS/755 Martha J. DeMaio Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Attorney Beth L. Eisenberg appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Eisenberg requested various records related to an identified matter. The Department denied her request claiming that the responsive record claiming the request is not a public records request and if it were treated as a public records request the records are exempt from disclosure pursuant to Exemptions (c) and (f) of the Public Records Law, and G. L. c. 6, §§167-178, G. L. c. 41, § 97D and G. L. c. 265, § 24C as those statutes operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). 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). 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. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 ~ec.state.ma.us/pre • pre@sec.state.ma.us

Martha J. DeM aio SPR18/755 Page2 June 8, 2018 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 of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Eisenberg'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 of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Eisenberg may wish to consider another means of seeking to obtain any existing responsive records. In its response, the Department indicates that "[w]here there is a judicial means of obtaining records, or you may be seeking access on behalf of the named individual, access through the Public Records Law is not appropriate. In addition, as indicated below even absent your apparent personal interest, the records are not available through the Public Records law, as applicable statutes and exemptions permit and require nondisclosure of the records in their entirety." Exemption (a) 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 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

Martha J. DeMaio SPR18/755 Page 3 June 8, 2018 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. The Department has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [R]ecords and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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 ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. C. 6, § 167. In its response, the Department indicates that "[a]ny responsive records that contain arrest information are completely exempt as Criminal [Offender] Record Information." Additionally, the Department cites G. L. c. 265, § 24C and G. L. c. 41, § 97D as applicable to withholding responsive records. G. L. c. 265, § 24C and G. L. c. 41, § 97D state respectively: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13Bl/3, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public

Martha J. DeM aio SPR18/755 Page4 June 8, 2018 inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be determined to be a public record under the provisions of section seven of chapter four. G. L. C. 265, § 24C. All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality .... G. L. C. 41, § 97D. In its response, the Department indicates that it "must object to your request for a copy of all records related to this sexual assault incident on the grounds that the laws of the Commonwealth protect both the identity of the rape victim, as well as the specifics of the report of a sexual assault or rape." The Department asserts that "[b] oth statutes protect Boston Police Department records relating to sexual assault in their entirety, including any information contained in the records of the Crime Laboratory, Evidence Management, Latent Prints, etc. As such, all records related to a sexual assault are not deemed public and are protected by the Department in a manner that assures their confidentiality." Exemption (c) 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, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may

Martha J. DeMaio SPR18/755 Page 5 June 8, 2018 be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (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) (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, 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's response indicates that "[b]y specifically identifying the case by the court docket number, suspect's name and incident report number, the Department would be unable to provide the responsive records in redacted form." The Department indicates it has

Martha J. DeMaio SPR18/755 Page 6 June 8, 2018 "opted to withhold these records in their entirety because redacting the names of the involved parties would not ensure their privacy." 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 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 Department indicates that "[w]ith respect to [Attorney Eisenberg's] request, the exemption applies to statements made by voluntary witnesses." The Department states that "[o ]rdinarily a record containing witness statements would be redacted to omit information that could identify the witnesses. In this instance, however, it appears that you are more familiar with the matter than the average person. As such, it would be impossible to redact the statements of any voluntary witnesses in a manner that would protect the identity of those witnesses. The only way to protect the identity of any voluntary witnesses in this matter is to withhold the statements in their entirety." 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, § 1O (b )(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 Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

Martha J. DeMaio SPR18/755 Page 7 June 8, 2018 With respect to the unique right of access claim, in her petition for appeal, Attorney Eisenberg disputes the Department's contentions indicating that the "there is no active litigation in connection with this request." She explains that her client "does not have an appeal pending in the Supreme Judicial Court in connection with [an identified docket number], nor does [her client] have any collateral challenge pending on that docket number in superior court." Attorney Eisenberg concludes that although she is appointed as counsel she does not presently have a unique right of access to the requested information. As such, I find the City has not established that Attorney Eisenberg has a unique right of access to this information at this time that precludes here from pursuing an appeal. With respect to its Exemption (a) claim, the Department has cited the CORI Act. Based on the Department's response it is unclear what portions of what records was withheld and how each of those portions constitute CORI under the new definition. Therefore, I find the Department has not met its burden to withhold portions of the responsive records under the CORI Act. The Department also cites G. L. c. 41, § 97D and G. L. c. 265, § 23 as applicable to withhold the records pursuant to Exemption (a). In her appeal petition, Attorney Eisenberg notes ,r "I do not appeal from the denial of production of police reports ( as described in 2 of the Records Request) under G. L. c. 41, § 97D." However, based on the Department's response it is unclear how all the records either contain the victim's name or constitute "reports of rape and sexual assault or attempts to commit such offenses." As such, I find the Department has not met its burden to withhold portions of the responsive records under the relevant statutes. Although the Department provides an explanation for why it withheld the records in their entirety under Exemption ( c) , the nature of each nondisclosure is unclear. Specifically, it is unclear which clause the Department is claiming and to what specific record it applies. The Department's response does not sufficiently offer specific explanation as to how either clause permits nondisclosure of the responsive records. The Department's response, specifically any explanation of the applicability of the above exemptions to the withheld portions, does not reach the level of specificity required. As a result, I find that the Department did not satisfy its burden to permit nondisclosure of the responsive records. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to withhold or redact portions of the requested records in order to comply with the Public Records Law and its Access Regulations. However, with respect to its Exemption (:t) claim, I find the Department may withhold or redact voluntary witness statements to the extent that such withholding is necessary to ensure witness anonymity. See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual); Antell, 52 Mass. App. Ct. at 248.

Martha J. DeMaio SPR18/755 Page 8 June 8, 2018 Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld with the exception of the voluntary witness statements as described above. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Attorney Eisenberg with 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Beth L. Eisenberg, Esq.