Beth Eisenberg, Esq. v. Boston, City of - Police Department (SPR 20181502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 26, 2018 SPRlS/1502 Martha J. DeMaio City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Attorney Beth Eisenberg 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 Eisenberg requested the following categories of records: 1. A list of any and all evidence, including but not limited to any biological items (such as a rape kit) or physical evidence, related to [an identified matter], and which is currently in the possession, custody, or control of the Boston Police Department (whether the Boston Police Crime Laboratory, evidence control units, or any other section); 2. Any and all photo arrays assembled in connection with [an identified matter], regardless of whether such arrays were actually shown to any complainant or witness associated with the case, and including any arrays which were actually shown to any complainant or witness; and any arrays signed by such complaint, witness, and/or police officer in connection therewith; 3. A list documenting the existence of any and all medical records produced to, procured by, or obtained by the Boston Police Department (including but not limited [to] the Boston Police Sexual Assault Unit, Boston Police Crime Laboratory, evidence control units, investigative units, or any other section) in connection with [a n identified incident]. Previous appeals This request was the subject of previous appeals. See SPR18/954 Determination of the Supervisor of Records (July 12, 2018); SPR18/755 Determination of the Supervisor of Records 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 SPR18/1502 Page 2 October 26, 2018 (June 8, 2018). I closed SPRl 8/954 by finding that 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 July 20, 2018, the Department provided a response to Attorney Eisenberg. Unsatisfied with the Department's response, Attorney Eisenberg petitioned this office and this appeal, SPRl 8/1502, 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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Eisenberg'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"). As

Martha J. DeMaio SPRlS/1502 Page 3 October 26, 2018 such, Attorney Eisenberg may wish to consider another means of seeking to obtain any existing responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records 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). 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 cites G. L. c. 41, § 97D as a means for withholding responsive records, which states in pertinent part: 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 ... G. L. C. 41, § 97D. In its July 20th response, the Department indicates that "[a]ll three (3) items request records relating to a sexual assault investigation which are considered part of the Department's sexual assault case file. As such, the Department is statutorily prohibited from providing [Attorney Eisenberg] the requested records pursuant to M.G.L. c. 41 s. 97D ... " The Department

Martha J. DeMaio SPR18/1502 Page 4 October 26, 2018 explains that "the evidence obtained by investigators during the sexual assault investigation (Item No. 1) , the photo arrays of potential suspects complied by investigators and shown and signed by the sexual assault victim (Item No. 2), and the records of medical treatment sought as a result of the sexual assault (Item No. 3) are part of the sexual assault investigation and are protected from disclosure by M.G.L. c. 41 s. 97D. The three (3) requested items name the involved parties (including the victim) and contain information about the underlying sexual assault." 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). 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 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., 431 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. 11-01184-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 (1985); Globe Newspaper Co., 388 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 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. 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.

Martha J. De Maio SPR18/1502 Page 5 October 26, 2018 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 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 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. In its July 20th response, the Department indicates that "the requested records- lists of all the evidence obtained in the sexual assault investigation (including the victim's rape kit), photo arrays shown to the victim, and lists of medical records- contain information about specifically named individuals, release of which would constitute an unwarranted invasion of privacy in violation ofM.G.L. c. 4 s. 7(26)(c)." 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, § 10( d)(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 511. The Department cites G. L. c. 41, § 97D as applicable to withhold the records pursuant to Exemption (a). Whereas Attorney Eisenberg's request is for a "list of any and all evidence," and a "list documenting the existence of any and all medical records" ( emphasis added), based on the Department's response, it is unclear whether the Department possesses the responsive lists. It is additionally unclear how the above referenced lists and the requested "photo arrays" constitute

Martha J. DeMaio SPR18/1502 Page 6 October 26, 2018 "reports of rape and sexual assault" under the claimed statute. As such, I find the Department has not met its burden to withhold the responsive records under Exemption (a). Despite the Department's explanation with respect to its Exemption (c) claim, the nature of each nondisclosure remains unclear. Specifically, it is unclear which clause of Exemption (c) the Department is claiming and to what specific record it applies. The Department's response does not sufficiently offer a specific explanation as to how either clause permits nondisclosure of the responsive records. As such, I find the Department has not met its burden to withhold the responsive records under Exemption ( c ). The Department's response, namely any explanation of each exemption's applicability to the responsive records, 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, § 1 O(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 511 (custodian has the burden of establishing the applicability of an exemption). Order Accordingly, the Department is ordered to provide Attorney Eisenberg 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: Beth Eisenberg, Esq.