Arlenis Joaquin v. Lowell, City of - Law Department (SPR 20181033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30,2018 SPR1811033 James Wellock, Esq. Assistant City Solicitor City of Lowell - Law De? ! artment 375 Merrimack Street, 3' Floor Lowell, MA 0 18 52 Dear Attorney Wellock: I have received the petition of Arlenis Joaquin appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Joaquin requested the following 37 categories of records that may have been generated by the City as a result of an incident of domestic violence and other related criminal offenses. It should be noted that request 33 is missing from Ms. Joaquin's original request. Incident report Case No. 20 17-00011 95 A Date of Domestic Violence Incident January 19,201 7, Time 22: 11 Arresting officer: . . . ID NO, 16779 Arresting officer . . . ID NO: 11 7 1 Charges: A&B simple 265: 13A, 265: 13M, 266,266: 127,911 Incident report Criminal Intelligence Report Criminal Records Investigation Report Witness Other collected evidence Follow Up After Arrest Report (or the equivalent) Defendants injury Report (or the equivalent) DVU Investigation Report of Domestic violence Reported DVU Investigation Report on children alleged assaulted by defendant All and any Pictures or Video Recordings of Defendant All and any Pictures or Video Recordings of children alleged assaulted by defendant Injuries Reports (or the equivalent), of children alleged assaulted by defendant. Injuries Reports (or the equivalent), of. . . alleged assaulted by defendant 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

James Wellock, Esq. Page 2 July 30,2018 All and any pictures of Video Recordings at the scene of. . . alleged assaulted by defendant Number of Car Patrol Units responded to Domestic Violence Scene Names and ID Numbers of all Police officer responded to Domestic Violence Scene Names and ID Numbers of all Senior officer responded to Domestic Violence Scene Names and ID Numbers of all DVU officer responded to Domestic Violence Scene Personal Memo Notes of all officerland senior officer responded to Domestic Violence Scene Lowell Police Dept. Rules and Regulations (and or policy), on Domestic Violence Lowell Police Dept. Policies and Procedures (and or policy), on Domestic Violence Lowell Police Dept. Standards Operating Procedures (and or policy), on Domestic Violence Lowell Police Dept. training Materials (and or policy), on Domestic Violence Lowell Police Dept policy on implementation of Executive Order 468 January 30 2009 [MPTC 20 hour training certificates] for Second Officer in command [MPTC 20 hour training certificates] for Senior Officer at the scene [MPTC 20 hour training certificates] for "All Officer that responded to the 91 1 Domestic emergency call 91 1 call audio recordings All Police Radio transmission audio recordings." Previous appeals The request was the subject of previous appeals. See SPR171788 Determination of the Supervisor of Records (June 2 1,201 7); SPRl71134 1 Determination of the Supervisor of Records (October 5, 2017); and SPRl81100 Determination of the Supervisor of Records (February 5, 201 8). In my February 5'" determination, finding that the City did not meet its burden to withhold responsive records in their entirety under Exemption (a) of the Public Records Law, I ordered the City to provide Ms. Joaquin with the requested records in its possession in a manner consistent with the order, the Public Records Law, and its Regulations. Following the February 5thd etermination, the City provided a response on April 4,2018 , denying access to portions of the responsive records pursuant to Exemptions (a), (c), (e), and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (e), (f). The City also indicated that it did not possess portions of the records. Unsatisfied with the City's response, Ms. Joaquin petitioned this office and this appeal, SPR1811033, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on July 25,201 8.

James Wellock, Esq. Page 3 July 30,2018 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. Bouaas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Joaquin'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 such, Ms. Joaquin may wish to consider another means of seeking to obtain any existing responsive records. 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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlep, 419 Mass. 507, 5 1 1 (1 995) (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. The City's April 4'" response In its April 4,201 8 response, the City indicates that for requests 3 1 and 32, it does not possess "MPTC 20 hour Trainings Certificates or domestic violence training certificates of' two identified individuals and indicates that "Executive Order 468 does not mandate training,

James Wellock, Esq. Page 4 July 30,2018 certificates, or the retention of training records." The City also notes that no records exist for request 21 ". . . which details the number of police cars that responded to the domestic violence incident. . . ." The City asserts that requests 1-5 do not constitute public records and therefore requires no response. The City further claims it withheld other records pursuant to the following exemptions. Exemption (a) The City indicates that it withheld responsive records under G. L. c. 6, 5 167, the Criminal Offender Record Information (CORI) Act, as it operates through 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 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 (19 79); 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 City cites the CORI Act as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI is defined as: [Rlecords 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,

James Wellock, Esq. Page 5 July 3 0,201 8 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. Under its Exemption (a) claim, the City indicates that "[rlegarding 18, which reads 'criminal records,' records responsive to this request are exempt as CORI records . . ." Exemption (c) 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 First clause of Exemption (c) nzedical - 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 creates a categorical exemption for personnel and medical information that relates to Id. an identifiable individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Bropan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 43 8. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (19 87). Under the first clause of Exemption (c), the City claims ". . . each request for 'injury reports' (171 3, 18, 19) the Privacy Exemption applies to medical records. Citing to the Globe Newspaper Co. decision, the City asserts that "[als a general rule, medical information will always be of sufficiently personal nature to warrant exemption. . . . As such, the requests of

James Wellock, Esq. Page 6 July 30,2018 'injury reports' or information concerning injuries and medical treatment is not subject to disclosure." Second clause of Exemption (c) -privacy 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 Ethical Treatment of Animals (PETA) v. Dep't of Aaric. Res., 477 Mass. 280,29 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 knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Under the second clause of Exemption (c), the City claims "[rlegarding pictures of videos of the victims or perpetrators of a domestic violence incident report requested in 771 6, 17,20, the privacy exemption applies to these records. . . . The disclosure of photos (such as these) of persons (some of whom are children) who are individually identified and expressly stated to be victims of a criminal assault, where the photo reveal their physical appearance and physical condition, would constitute an unwarranted invasion of personal privacy." The City also claims ". . .7736-37, the 91 1 call records would also be withheld under the privacy Exemption. The 91 1 calls of [sic] are of citizen witnesses whose statements relating to a domestic violence incident reveal the identities of the individual complainants/witnesses. Likewise the audio recordings would reveal upon disclosure the voices of caller(s). The responsive records cannot be redacted in a manner that would protect the identities of these individuals."

James Wellock, Esq. Page 7 July 30,2018 Exemption (e) The City claims it withheld responsive records pursuant to Exemption (e) of the Public Records Law. Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist himlher in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. The City asserts that for request 25, "personal memo notes" of police officers, ". . . to the extent they exist, are exempt from disclosure under Exemption E. . . . Personal notes kept by a city employee which are not part of the City's files are not subject to disclosure." Exemption &,I The City also claims it 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

James Welloclc, Esq. Page 8 July 30,2018 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 (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. 28 1,290 n. 18 (19 79). 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 City also indicates that requests 6, 7,9, 10, 11-25 must be withheld under Exemption - - cooperation with witnesses in criminal investigations. As here, where the requested recA ords are 'witness statements' statements by witnesses were made on condition of anonymity, witness statements made to police officers conducting an investigation are exempt from disclosure." The City contends that "[alny investigation report which contains information collected by police officers during their criminal investigation are [sic] not subject to disclosure. Photos and video recordings or other collected evidence by the police in the course of their ongoing investigation are likewise not subject to disclosure." Tlte City's July 2~~s'u'p plemental response In its letter dated July 25, 2018, the City responds to certain claims made in Ms. Joaquin's petition for appeal. The City reiterates that it has no records in its possession regarding requests 30,31, 32, 34, and 35, "MPTC 20 hour Trainings Certificates or domestic violence training certificates of' two identified individuals. Further, the City indicates that Ms. Joaquin's request 8, "criminal records" ". . . and each of the requests numbered 176-25 and 7736-37-is supposed to be understood to refer to the information provided in 771-5 which details the date, time, and report number of an alleged incident of domestic violence as well as specifying two names and badge numbers of [City] Police Officers who responded to the allegation of domestic violence and the charges brought against the alleged perpetrator. . . ." The City asserts that "[slince the items requested are reports and materials contained in a domestic violence report or are communications between victims and police regarding an allegation of domestic violence, they are exempt from disclosure under [G. L. c. 41, 5 97DI." The City indicates that "[tlhis exemption applies to [the above referenced requests] because each seeks materials related to this allegation of domestic violence." The City cites the Montefusco v. Commonwealth, 452 Mass. 1015 (2008) and Commonwealth v. George W. Prescott Publ. Co. LLC, 452 Mass. 258 (2012) decisions to support its position.

James Wellock, Esq. Page 9 July 30,2018 Additionally, the City asserts that "9 11 call recordings that are a report of an incident of domestic violence constitute, on their face, a report to police of domestic violence, and are therefore protected by 597D. And, likewise, the photos of the domestic violence victims' injuries and the report of the domestic violence victims' injuries are part of the domestic violence report and are protected by g97D." The City contends that "[wlhile the photos and injury report may not be communications to police of domestic violence, they are part of a report of domestic violence. They do not exist in the City's possession for any purpose other than as part of the report of domestic violence. . . ." Based on the City's responses, it remains unclear what types of records the City has in its possession. To deny access to a record under the Public Records Law, a records access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4). Consequently, in order to facilitate a determination as to the applicability of the shall be a public record and shall be contained in one document, adequately describe each withheld record or redaction from a released record, state the exempion or exemptions claimed for each withheld record or each redaction of a record, and the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is Id. exempt. Conclusion Accordingly, the City is ordered to provide this office with a custodial index of the requested records. Such index must be provided in a manner consistent with this order, the Public Records Law, and its Regulations within fifteen business days. 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: Arlenis Joaquin