Beth Eisenberg, Esq. v. Boston, City of - Police Department (SPR 20180954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12,2018 SPRl81954 Katherine Hoffman, Esq. The Office of the Legal Advisor Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Attorney Hoffman: 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, 5 10A; see & 950 C.M.R. 32.08(1). Specifically, Attorney Eisenberg requested various records related to an identified matter. Previous appeal This request was the subject of a previous appeal. See SPR181755 Determination of the Supervisor of Records (June 8,2018 ). I closed SPR181755 by finding the Department had not met its burden to explain how an exemption applies to the requested records and ordered the Department 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. In a letter dated June 13,2018 , the Department provided a response to Attorney Eisenberg. Unsatisfied with the Department's response, Attorney Eisenberg petitioned this office and this appeal, SPR181954, was opened as a result. Tlze 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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Katherine Hoffman, Esq. Page 2 July 12,2018 Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 11 (19 95) (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requestor 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 requestor. See Bouaas v. Chief of Police of Lexinnton, 371 Mass. 59,64 (1 976). Accordingly, Attorney Eisenberg 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 (19 98). 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 June 13'~re sponse, the Department indicates that "[ilt is clear from [Attorney Eisenberg's] correspondence that [she has] been obtained to represent [an identified individual]. Where [Attorney Eisenberg] represent one of the involved parties whose records [she] now seek[s] to obtain, [she] has a unique right of access outside of Massachusetts Public Records Law. While [Attorney Eisenberg] represent[s] in [her] May 2 1,201 8 [sic] that there is no open litigation at this time, it appears from [her] correspondence that [she has] been retained to represent [an identified individual] regarding the potential filing of any post-conviction motions and as such, would have a statutory post-conviction discovery process available to [her] to request and obtain discovery relating to [her] client." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Katherine Hoffman, Esq. Page 3 July 12,201 8 specifically or by necessary implication exempted from disclosure by statute 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. Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 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. The Department has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, 5 167, as applicable to withhold responsive records. Please note that an updated definition of CON is currently in effect. CORI is defined as: "Criminal offender record information", records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, 5 167 (emphasis added).

Katherine Hoffman, Esq. Page 4 July 12,2018 Additionally, the Department cites G. L. c. 265, 5 24C and G. L. c. 41, 5 97D as applicable to withholding responsive records. G. L. c. 265, 5 24C and G. L. c. 41, 5 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, 13 B113, 13B314, 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 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. 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 .. . . In its June 13 thr esponse, the Department indicates that "the records [Attorney Eisenberg is] requesting pertain to a Sexual Assault Unit investigation and are part of the Sexual Assault Unit file. As such the Department is statutorily unable to provide you with the requested records pursuant to Massachusetts Criminal Offender Record Information (CORI), G.L. c. 265 s. 24C, and G.L. c. 41 s. 97D, absent a court order." Exemption (c) In its June 13'~re sponse, the Department indicates "[fJor all of the reasons set forth in the Department's April 13, 20 19 denial letter, the Department maintains that its decision to deny your April 9,2018 public records request was proper and in accordance with Massachusetts Public Records Law." In its April 13 t'1 letter, the Department additionally claims Exemption (c) applies to without the requested records. These claims were addressed in my June gth determination. See SPRl81755. Exemption (c) permits the withholding of:

Katherine Hoffman, Esq. Page 5 July 12,201 8 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 The first clause 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 be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 43 1 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. 1 1-011 84-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 (19 85); Globe Newspaper Co., 3 88 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 (1 979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Cornrn. 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 Propertv 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

Katherine Hoffman, Esq. Page 6 July 12,2018 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 knowing whether public servants are carrying out their duties a. in a law-abiding and efficient manner. at 292. 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, 3 lO(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 Comrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 11. With respect to the unique right of access claim, the Department's response does not provide the means affording Attorney Eisenberg a present "unique right of access" allowing the Department to treat this request as something other than a public records request under the Public Records Law. 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 were withheld and how each of those portions constitute CORI under the new definition. Specifically, it is uncertain how the records are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. Therefore, I find the Department has not met its burden to withhold portions of the responsive records under the CON Act. The Department also cites G. L. c. 41, 5 97D and G. L. c. 265, 5 23 as applicable to withhold the records pursuant to Exemption (a). 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. Whereas the Department provides no additional information in its June 13' response in support of its Exemption (c) claim, but appears to indicate the Department is still claiming that Exemption (c) applies, I will reiterate my June 8"' finding. Although, in its April 13'~re sponse, 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

Katherine Hoffman, Esq. Page 7 July 12,201 8 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 each exemption's applicability to the redacted 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. I find the Department must provide a response to Attorney Eisenberg that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, 5 1O (b)(iv) (a written response shall "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 .... ); Flatley, 419 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). 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. 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, C/ Rebecca S . Murray Supervisor of Records cc: Beth L. Eisenberg, Esq.