Seth Kershner v. Pittsfield, City of - Police Department (SPR 20181262)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 30, 2018 SPRlS/1262 Ms. Kerri Striebel Records Clerk Pittsfield Police Department 3 9 Allen Street Pittsfield, MA 01201 Dear Attorney Striebel: I have received the petition of Seth Kershner appealing the response of the City of Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested records relating to "previous written documentation concerning civilian complaints against and internal affairs investigations of the identified officer." The Department provided Mr. Kershner with a response on August 6, 2018 citing Exemptions (a), (c), and (f). Taking issue that the Department gave "no indications or meaningful annotations in the documents that reveal the Department's reasoning or the specific bases for each redaction" Mr. Kershner appealed the Department's August 6th response to this office. Tlte Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all ------···· --·governmental records are puol1c records:-G-:-r:. c. o·6~§-ro-K(dJ;93U-C:-M~-T(ITC4f."Pu:6I1c ·· 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 'Nithin 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, § IO(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. G. L. c. 66, § lO(b)(iv). 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

Ms. Kerri Striebel SPR18/1262 Page 2 August 30, 2018 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. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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). The Department cites the Criminal Offender Record Information (CORI) Act for the reasoning behind withholding requested records. The Department stated to Mr. Kershner in the May 6th response that "[t]he CORI provided shall be limited to the information compiled by the Criminal Justice Agency (CJA), such as a police report prepared by the CJA. A CJA may not provide an individual with any CORI obtained through CJIS." The Department asserts that Mr. Kershner requested documents that identify a certain individual which would be protected as CORI. See G. L. c. 4, § 7 (26)(a). The Department has cited the 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 is defined as: [R]ecords and data in any communicable form compiled by a Massachusetts ------c=nmmal Justice agency wliicfi concern an 1dent1fiafileind1v1dual 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 'Nhere the defendant was detained prior to trial or released v1ith 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

Ms. Kerri Striebel SPR18/1262 Page 3 August 30, 2018 G. L. C. 6, § 167. It is unclear how the withheld records are exempt under the CORI Act; specifically, it is uncertain how all of these records contain information compiled by a criminal justice agency and is restricted restricted to "information recorded in criminal proceedings that are not dismissed before arraignment" as described above. The Department thus has not satisfied the requirements under Exemption (a) in its May 6th response. Exemption (c) The Department claims records may be withheld under the second clause of 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). 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). 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 -Sensibilit-ies;-(2}-whether-the-mat€fials--Soug11t-Gentaia-intimate-detail&o-f-a-highly-persffllHt--------------- 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, 477 Mass. at 291. The

Ms. Kerri Striebel SPRI8/1262 Page 4 August 30, 2018 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 cited Exemption ( c) when referring to the withholding of records for "[i]ntimate details of a highly personal nature" who maintain significant privacy interests in the dissemination of any given police report. The Department explained that the "records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy." However, the Department's response does not address the factors articulated in PETA. As a result, the Department has not established whether there is a privacy interest that is not substantially outweighed by a public interest. See id. at 291-92. The Department thus has not satisfied the requirements under Exemption ( c) in its May 6th response. 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 effecttveiaw-enfor-c-eI11ennlratsu-c"ln:ttsclosure would not be in tne public interesr.'+-see Reinstein, 378 Mass. at 289-90. The Department explains in the May 6 1 response ta Mr Kershner that tbe Department cited Exemption (f) given the requested records contain "information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants." However, the Department does not identify the records it has in its possession that relate to confidential investigative techniques. Also, the Department did not demonstrate how the disclosure of all of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to

Ms. Kerri Striebel SPR18/1262 Page 5 August 30, 2018 withhold records under Exemption (f). I find the Department has not met its burden to withhold responsive records in their entirety under Exemption (f). See G. L. c. 66, § lO(a). Conclusion The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). It is unclear what records the Department is withholding from Mr. Kershner concerning his request or if the records are in the Department's possession. See G. L. c. 66, § lO(b)(ii), (b)(iii). The Department must identify the record(s) withheld under each exemption and explain why the exemption applies in the manner described above. See G. L. c. 66, § lO(b)(iv) (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); See 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, § lO(a). This office encourages both parties to communicate further. The Department may ask Mr. Kershner for a more refined search in order to provide the responsive records in a more efficient manner. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Order Accordingly, the Department is ordered to review the requests made by Mr. Kershner and provide a written response to Mr. Kershner, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. A copy of any such response must be provideato this office. It is prereraolerosenaan electronic copy oftnis response rotli-1s_ _______ office at pre@sec.state.ma.us. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Seth Kershner