Mike Beaudet v. Massachusetts State Police (SPR 20190537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2019 SPR19/0537 Michael Halpin, Esq. Department of State Police 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Mike Beaudet appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on January 10, 2019, Mr. Beaudet requested "copies of all the digital files associated with" an internal affairs investigation. The Department provided a response on March 4, 2019, denying access to responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Mt. Beaudet petitioned this office and this appeal, SPR19/0537, 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive 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

Michael Halpin, Esq. SPR19/0537 Page2 March 25, 2019 The Department's March lh response In its March 4, 2019 response, the Department indicated that the requested records" ... comprised of two DVD+RW discs containing digital evidence obtained during the Internal Affairs investigation. Disc 1 contains a file folder of all audio recorded interviews, videos recorded by the Complainant, and videos recorded by members of the Hodgdon family. Some videos are recorded by means of Smart Phone, others are surveillance footage taken from home security cameras. It also contains the Face book archives of witnesses who were interviewed during the course of the investigation. Disc 2 contains the same material, which was collected by the Dracut PD and provided to the State Police during its investigation." The Department explained that" ... the discs contain video and/or audio recorded data that reveals the identity of witnesses, witness testimony, the Complainants, the Hodgdon family, and minor children. The disc also contains still images of witnesses and minor children." The Department contended that "[t]he identity of witnesses, their testimony, and their images are not subject to public disclosure under the privacy and investigatory exemptions to the Public Records Law. G.L. c. 4, §7, cl. 26 ( c) and (f). Records pertaining to minor children are exempt from public disclosure under G.L. c. 4, §7 cl 26 (a) and (c)." 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.

Michael Halpin, Esq. SPR19/0537 Page 3 March 25, 2019 Under its Exemption (a) claim, the Department asserted that "[t]he Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure. For instance, the provisions of G.L. c. 119, §§ 1-84, relative to care and protection of children proceedings, specifically prohibit the release of information relating to juveniles; G.L. c. 71, §34D (2002 ed.) permits the Board of Education to adopt regulations limiting access to student records; G.L. c. 276, § 1O OB permits the Commissioner of Probation to seal records relative to child delinquency matters; G.L. c. 120, §21 permits the Department of Youth Services Records to withhold records of a child delinquency commitment; G.L. c. 209A, §8 deems 209A records relating to minors as confidential and not subject to public release; and G.L. c. 51, §4 prohibits municipal voter registrars from disclosing the names of minor children aged 3-16 to the public." Referencing a Supervisor of Records determination, SPR05/007, where the Supervisor upheld the redaction of identifying information regarding a minor, the Department asserted that "[g]iven the fact some of the videos depict minor children, the Department denies [Mr. Beaudet' s] request." 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). Second clause ofE xemption (c) - privacy 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). Only the second clause of Exemption ( c) is applicable to this determination. 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

Michael Halpin, Esq. SPR19/0537 Page 4 March 25, 2019 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. Under its Exemption (c) claim, the Department stated that "[t]he audio and video recordings from the two discs contain the testimonial and video evidence voluntarily provided by witnesses to [the Department's] investigators. It contains videos taken by the Hodgdon's and the Complainant, and video from two different home surveillance systems." The Department explained that "[t]he content on the discs show, in intimate detail, the homes and family members of the Complainant and the Hodgdon's. This content falls squarely within the second clause of Exemption (c), which is designed to protect materials or data relating to specifically named individuals. Georgiou v. Commissioner of Department Oflndus. Accidents, 854 N.E.2d 130 (2006)." The Department further stated that "[t]he exemption, which favors nondisclosure, considers the public's right to scrutiny and the individual's right to privacy. Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282 (1999). Here, there can be no question that video depicting the home environment, children, pets and personal life of individuals subject to this report, which was released to you previously, is in the nature of records contemplated by the statutory exemption. For these reasons, the Department will not release the video recordings." Exemption (f) 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-

Michael Halpin, Esq. SPR19/0537 Page 5 March 25, 2019 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. Under its Exemption (f) claim, the Department stated that "Exemption (f), the investigatory exemption, culls out statements or tips provided by witnesses to law enforcement. Witnesses are individuals who have immediate knowledge and information of the incident being investigated-even if he or she is the subject of the investigation at hand." The Department explained that "[w]itness statements are collected by law enforcement out of the public view both to preserve the inviolability of evidence in active investigations and to ensure the coming forward of witnesses-as willing participants-in investigations down the road. Providing law enforcement with valuable evidence and protecting the sanctity of the witness statement is in the best interest of the public, witnesses and victims. Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976)." The Department stated that, "[a]s in the present case at hand, protecting the right of complainants to come forward with evidence facilitating the Department's investigation of its own members is invaluable. Therefore all witness statements provided to the Department during the course of its internal investigation of a Department employee are not public record. To this end, the identities of witnesses-even through content on a public social media website, is exempt from disclosure." Based on the Department's response, I find the Department must provide additional information regarding whether the audio and video recordings can be redacted in a way to prevent the disclosure of the identities of witnesses, complainant, and minor children involved. Conclusion Accordingly, the Department is ordered to provide Mr. Beaudet 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: Mike Beaudet