Claire Valentin v. Boston, City of - Police Department (SPR 20181463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 17, 2018 SPRlS/1463 Martha J. DeMaio City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Claire Valentin, Esq. appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Valentin requested "a copy of every record of field interaction/observation/encounter report in which [her] client is a subject." Previous appeal This request was the subject of a previous appeal. See SPRl 8/867 Determination of the Supervisor of Records (June 27, 2018). I closed SPRl 8/867 by ordering the Department to provide Attorney Valentin with a response to her request provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided a response to Attorney Valentin in a letter dated July 17, 2018. Unsatisfied with the Department's response, Attorney Valentin petitioned this office and this appeal, SPR18/1463, was opened as a result. 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, § 1O (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 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

Martha J. DeMaio SPR18/1463 Page2 October 17, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Purpose of request; identity ofrequestor 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Valentin'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"). In its July 1J 1h response, the Department asserts that "[a]s the attorney for [her client], [A ttorney Valentin] would have a 'unique right of access to records referencing [her] client outside of the Public Records Law." However, it unclear how Attorney Valentin has a "unique right of access to the record[ s] through statutory, regulatory, judicial or other applicable means" thereby barring the application of the administrative appeal process under the Public Records Law. See 950 C.M.R. 32.08(1)(a). In Attorney Valentin's petition for appeal, she indicates that "neither my client nor I have access to the regular tools of discovery to review the evidence being used against him in his immigration proceedings." Accordingly, the Department must explain whether there is a means affording Attorney Valentin a "unique right of access" to the requested records and if so, identify the means and explain its applicability to the responsive records. 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).

Martha J. DeMaio SPR18/1463 Page 3 October 17, 2018 Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (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 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 ofAnimals (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. ih In its July 1 response, the Department indicates that it "denied the release of the Field Interrogation Observation reports referencing [Attorney Valentin's] client on the basis that there is no public interest in the disclosure of this information, especially when balanced against the individual privacy interest held by the persons identified in [Attorney Valentin's] request." It is unclear if the Department is claiming Exemption (c) applies to the requested records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Records Access Officers (RAOs) must meet their burden of demonstrating how redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, if the Department does intend to claim Exemption ( c) applies to the records it must explicitly claim the Exemption and explain its applicability to identified records with specificity. The Department must clarify this matter.

Martha J. DeMaio SPR18/1463 Page4 October 17, 2018 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. ih In its July 1 response, the Department indicates that "[t]he disclosure of an individual's gang affiliation falls within the category of non-public information under exemption (f) and is not subject to disclosure." The Department explains that "[g]ang intelligence is an invaluable tool in the Department's effort to combat crime, particularly with respect to narcotics and firearms. The Department relies heavily on this information when investigating gang related criminal activity and disclosure of the requested information would significantly undermine the Department's abilities to monitor such activities. As such, protection of such investigatory materials is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus ensure the safety of private citizens."

Martha J. DeMaio SPR18/1463 Page 5 October 17, 2018 In Attorney Valentin's petition for appeal, she asserts that "the Department has previously made public, through Immigration and Customs Enforcement, 50 pages of investigatory materials purporting to demonstrate that my client is a member of a gang. These records are now part of public record in proceeding before the Boston Immigration Court ... and federal habeas proceedings before the U.S. District Court ... Thus, the privacy and investigative interest cited by the Department's response are already substantially diminished, and cannot offset the public's right to know, which the legislature sought to protect with G.L. c. 66, § 10." The Department's response did not contain the specificity required in a denial of access to public records. Despite its response, it remains unclear if the responsive records pertain to a specific ongoing investigation. If so, the Department must explain the subject of the investigation and describe how the requested records are part of the investigation. Further, despite the Department's claim that disclosure would "significantly undermine the Department's abilities to monitor" "gang related criminal activity," in conjunction with Attorney Valentin's claim that the responsive records have previously been made available, the Department has not demonstrated how disclosure 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 withhold records under Exemption (f). As a result, the Department has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 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). Order Accordingly, the Department is ordered to provide Attorney Valentin with a response to the request, 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: Claire Valentin, Esq.