Seth Kershner v. Pittsfield, City of - Police Department (SPR 20190134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 4, 2019 SPR19/134 Kerri Striebel City of Pittsfield - Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Seth Kershner appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested the following records: "1. All after-action reviews documenting each time the Special Response team deployed. 2. Monthly training reports or memos, summarizing the monthly training activities for members of the SRT team, from April 20, 2017 until the date of this request. (For a sample of similar records maintained by another agency, and released under the Public Records Law, see attached). 3. Any budget for the operation of the Berkshire County Special Response team; any records relating to funding sources and grants for the Berkshire County Special Response team from April 20, 2017 until the date of this request. 4. Any internal or external audits of Berkshire County Special Response/SWA T team performance or records of cost effectiveness from April 20, 2017 until the date of this request." The Department provided a response on January 11, 2019, which included responsive records in redacted form. The Department claims the redactions were made pursuant to Exemptions (a), (b), (c), (f) and G) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (c), (f), G). Unsatisfied with the Department's response, Mr. Kershner petitioned this office and this appeal, SPR19/0134, 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 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

Kerri Striebel SPR19/0134 Page 2 February 4, 2019 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 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. The Department's January Ji11 response In its January 11, 2019 response, the Department claims it redacted records pursuant to the following exemptions under the Public Records Law. 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.

Kerri Striebel SPR19/0134 Page 3 February 4, 2019 The statutes provide in relevant 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 209 A, and all communications between police officers and victims of such offenses or abuse 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 . . . . The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G.L. c. 66, § lOB. Pursuant to M.G. L. c. 6 section 175, a Criminal Justice Agency may disseminate CORI to the individual to whom it pertains, or to the individuals attorney, with a signed release from the individual. The CORI provided shall be limited to the information compiled by the CJA, such as a police report prepared by the CJA. A CJA may not provide an individual with any CORI obtained through CJIS. 803 C.M.R. 7.10(7). Under its Exemption (a) claim, the Department claims that "[t]he requested records contain communications between officers and victims of domestic violence, Victim address, and employment, CORI information (Arrest/Disposition of Criminal charge). Which have been redacted/withheld under law." Based on the Department's response, to the extent that records contain information relating to records contemplated in G. L. c. 41, § 97D and G. L. c. 66, § 1O B, the Department may permissibly withhold such portions from disclosure. However, based on the updated definition of CORI, it is unclear how the redacted portions of the responsive records constitute CORI. Specifically, it is uncertain how the redacted portions are "information recorded in criminal proceedings that are not dismissed before arraignment." See G. L. c. 6, § 167. Therefore, I find the Department has not met its burden to withhold portions of the responsive records under the CORI Act.

Kerri Striebel SPR19/0134 Page4 February 4, 2019 Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under its Exemption (b) claim, the Department states that it redacted" .. . procedures/practices used by the Response Team for executing deployment ... [because] [i]f released may be used by a criminal element to reduce the likelihood of being captured and for Officer Safety." Although, the Department claims that disclosure of the records " ... may be used by a criminal element to reduce the likelihood of being captured and for Officer Safety," the Department's response does not provide supporting information concerning how disclosure of the redacted portions could reduce the likelihood of a criminal element being captured or how officer safety could be compromised. That Department must clarify this matter.

Kerri Striebel SPR19/0134 Page 5 February 4, 2019 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). First clause ofE xemption (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, 432-34 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 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). Based on the Department's response, to the extent that records contain medical information, the Department may permissibly withhold such portions from disclosure. Second clause ofE xemption (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 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.

Kerri Striebel SPR19/0134 Page 6 February 4, 2019 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. Under the second clause of Exemption (c), the Department states that "[t]he records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. The requested records contain[] medical information with regards to specific named individuals, family disputes and reputation of specific individuals." To the extent that the records contain information that pertains to family disputes and reputation of specific named individuals, such portions may be withheld from disclosure. However, it is unclear which portions of the redacted records fall within the exemption. The Department must clarify this matter. 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. Citing the language of Exemption (f), the Department indicates that this exemption permits the withholding of records," ... [t]he disclosure of which would prejudice investigative

Kerri Striebel SPR19/0134 Page 7 February 4, 2019 efforts. In particular, it applies to information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants." The Department asserts that the" ... records contain[] witness information which if released would negatively affect investigative efforts. Less apt to speak with law enforcement to solve crime. As a result, such information must be redacted/withheld under the law." Based on the Department's response, to the extent that the records contain witness identities or information, the Department may permissibly withhold such portions from disclosure. Exemption (j) Exemption G) of the Public Records Law permits a records custodian to withhold or redact portions of records containing: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards. G. L. c. 4, § 7(26)(j) (emphasis added). The purpose of Exemption (j) is to prevent individuals with devious motives from ascertaining the identities of those who possess firearms. The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. A records custodian should withhold an entire firearms record if the requester knows with certainty that this particular record pertains to a specific address or individual. In this instance, redaction is futile as it would not protect the identity of the license holder(s). See id.; see also G. L. c. 140, §§ 121-131P. Under Exemption (j), the Department explains that "[t]his exemption applies to the Names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards. As a result, such information must be redacted/withheld under the law." Based on the Department's response, to the extent that the records contain names and addresses of persons contained in or referred to in applications for any licenses to carry or possess firearms, firearm identification cards or sales or transfers of any firearms, rifles,

Kerri Striebel SPR19/0134 Page 8 February 4, 2019 shotguns, or machine guns or ammunition, such portions may permissibly be withheld from disclosure under Exemption G). Additional records In his appeal petition, Mr. Kershner claims that "the [Department] never addressed categories #2-4 of my original request." 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). Based on the Department's response, it is unclear if it provided records responsive to categories 2 to 4 of Mr. Kershner' s requests. The Department must confirm whether it possesses additional records and provide them in accordance with the Public Records Law and its Regulations. 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 Accordingly, the Department is ordered to provide Mr. Kershner 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. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact portions of the responsive records, the Department may provide this office with un-redacted copies of responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to the Department's custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Kerri Striebel SPR19/0134 Page 9 February 4, 2019 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner