Kevin Rothstein v. Brockton, City of - Police Department (SPR 20181336)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18 ,2018 SPR1811336 Sergeant Brenda I. Perez City of Brockton Police Department - 7 Commercial Street Brockton, MA 02302 Dear Sergeant Perez: I have received the petition of Kevin Rothstein of WCVB-TV appealing the response of the Brockton Police Department (Department) to a request for public records. G. L. c. 66, 9 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 24,2018, Mr. Rothstein requested the -- following records: "- All applications for criminal complaints, all police reports and all booking photos for individuals arrested, summonsed to a show cause hearing, summonsed for arraignment or otherwise charged with the following offenses between Jan. 1,2016 and Dec. 31,2017: o MGL Ch. 272 section 53(a) -- Common night walker o MGL Ch. 272 section 53A(a), section 53A(b) and se~tion5 3A(c) - Engaging in sexual conduct for a fee If Brockton police records don't delineate the charge, then please consider this a request for all prostitution-related arrests (johns and prostitutes) If not otherwise included, please also provide records indicating the outcome in court of these cases" The Department provided a response on June 5,2018 , which included certain responsive records in redacted form. The Department also withheld certain records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). Unsatisfied with the Department's response, Mr. Rothstein petitioned this office and this appeal, SPR1811336, was opened as a result. It appears Mr. Rothstein is only appealing the denial of police reports and booking photos for individuals charged. 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

Sergeant Brenda I. Perez Page 2 September 18 ,201 8 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, $ 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, $ lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 4 19 Mass. 507, 5 1 1 (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, $ 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 Department's June jt'' response In its June 5,2018 response, the Department states that it is denying access to "[clriminal complaints1Arrest Reports and booking photos pursuant to the following exemptions: Exemption (a) The Department cites G. L. c. 6, $ 167, the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law to withhold records from disclosure. 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. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); 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

Sergeant Brenda I. Perez Page 3 September 18 ,201 8 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 updated definition of CORI reads in pertinent part: [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, 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). I note that the Department included the older definition of the CORI Act in its response. The Department is advised that there has been an update to the definition of CORI as indicated above. The Department further references two Supervisor of Records determinations, SPR141680 (February 20,20 15) and SPR141679 (February 19,201 5), and indicates that the Supervisor upheld the withholding of arrest reports and booking photographs as CORI. The Department also references the Boston Globe Media Partners, LLC v. Dep't of Criminal Justice Information System Services, et al., decision and indicates that "[tlhe ruling . . . only applies to booking photographs and incident reports of police officers and public officials and does not reference the general public."

Sergeant Brenda I. Perez Page 4 September 18 ,201 8 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 First clause of Exemption (c) medical - 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 fiom disclosure. Brogan 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 (1987). Under the first clause of Exemption (c), the Department asserts "[tlhe records requested contained medical files or information which must be withheld from the records pursuant to this exemption." 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. Tomes v. Attorney Gen., 391 Mass. 1,9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property De~'t3, 80 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: (I) 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

Sergeant Brenda I. Perez Page 5 September 1 8,201 8 a. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 41 5,427 (1 988) (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 Department states that ". . . the very nature of the charge can be devastating, humiliating, and cause severe repercussions both at home and at place of employment. Families could be torn apart; employment could be lost, creating even more problems at home." Consequently, the Department asserts that "[n]ames, locations, photographs and other data obtained by the [sic] releasing these records would cause an unreasonable invasion of privacy and the privacy interests involved outweigh the public interest in the disclosure of that information." The Department further cites a Supervisor of Records determination, SPR141729 (February 23,2015), to support its position to withhold the booking photographs. Burden of specificity; segregable portions 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, 5 10 (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 5 11. With respect to Exemption (a), it is unclear how all of the police reports and booking photos are exempt under the CORI Act; specifically, it is uncertain how all of the records pertain to "information recorded in criminal proceedings that were not dismissed before arraignment," as described above. In light of the updated definition of CORI, I find the Department has not met its burden to withhold responsive records under the CORI Act. With respect to the first clause of Exemption (c), to the extent that portions of the responsive records contain medical information, the Department may permissibly withhold such portions from disclosure. With respect to the second clause of Exemption (c), while the Department claims that ". . . the very nature of the charge can be devastating, humiliating, and cause severe repercussions both at home and at place of employment," I find the Department has not established that the booking photographs and police reports contain intimate details of a highly personal nature nor addressed whether the information is available from other sources. Also,

Sergeant Brenda I. Perez Page 6 September 1 8,20 18 although the Department claims "the privacy interests involved outweigh the public interests in the disclosure of that information," I find the Department has not demonstrated that the significant public interest in obtaining this information is outweighed by any privacy interests that these individuals may have. Further, I find the Department has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1, 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, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Department did not meet its burden to explain how Exemptions (a) and (c) permit it to withhold responsive records in their entirety, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Rothstein 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, Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein