Hayley Johnson v. Worcester City Manager's Office (SPR 20191311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111/sor ofR ecords July 15, 2019 SPR19/1311 Joshua Martunas Staff Assistant & Records Access Officer City of Worcester -Manager's Office 455 Main Street, Room 306 Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Hayley Johnson appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 14, 2019, Ms. Johnson requested "[a]ny and all internal affairs documents regarding Worcester Police Officer ... filed in the last six months." The City provided a response on June 26, 2019, which included responsive records in redacted form. Unsatisfied with the City's response, Ms. Johnson petitioned this office and this appeal, SPRl 9/1311, was opened as a result. While this appeal was pending, the City provided supplemental responses dated July 2, 2019 and July 15, 2019. 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, § 1O A( 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, § IO(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 pmiion 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 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

Joshua Martunas SPRI 9/1311 Page 2 July 15, 2019 custodian must provide the responsive records. The City's June 261 response " In its June 26, 2019 response, the City states " ... The second clause of the privacy exemption is applicable when the requested records implicate privacy interests. A record that invades privacy is deemed public only if 'the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy.' Attorney General v. Collector of Lynn, 3 77 Mass. 151, 156 (1979). A govenunental entity is required to examine the privacy interest at issue in light of the context of the disclosure." As a result, the City asserts that "[w]ith respect to the requested records, the City has determined the privacy interest associated with the disclosure of portions of the requested record (names, addresses, phone numbers, and email addresses of private individuals) outweighs the public interest in the disclosure." The City's July 2"rt and July 151 supplemental responses " In its July 2, 2019 response, the City reiterates its redactions under Exemption ( c) and states that" ... these records contain information pertaining to a personal marital/family dispute. This information constitutes intimate details of a highly personal nature. P01iions of records containing such information are exempt unless there is a paramount public interest in disclosure." The City also states that "[a] review of the responsive records further reveals the personal matter does not fall under the investigative purview of the Bureau of Professional Standards. Based on the facts of this case there is no legitimate public interest in disclosing the identities of these private individuals. Therefore, the city redacted identifying information of the associated private citizens in order to protect their privacy interests." In its July 15, 2019 response, the City reiterates its position that the second clause of Exemption ( c) is applicable to withhold identifying information from the responsive records and further claims Exemption (f) to suppo1i its redactions. The City states that it" ... de-identified the records with respect to the complainant and witnesses to permit disclosure of information regarding the nature of the complaint and its resolution without violating the privacy interests of private citizens." The City asserts that "[i]n the interest of transparency, and in order to disclose as much substantive information as possible, the city de-identified the responsive records. De identification protects the privacy interest of these private individuals. The privacy interest that the city seeks to protect through de-identification satisfies all levels of the 3 factor PETA test." The City contends that "[d ]isclosure of identifying information would implicate these individuals' privacy interests, which is in their identities being associated with intimate details of a highly personal nature ( a marital/family dispute), the public disclosure of which would result in personal embarrassment to a person of normal sensibilities, and which is not available from other sources. The privacy interest associated with this information clearly outweighs the public interest in disclosure." The City further asserts that "[t]hese individuals are not public figures, and are not even public employees. The subject matter was determined to be a personal matter not subject to the purview of the Bureau of Professional Standards. The records indicate the

Joshua Martunas SPRl 9/1311 Page 3 July 15, 2019 witness's own wishes with respect to her privacy interest regarding the matter: 'She also expressed that this was a personal matter and did not wish to make it public.' (e mphasis added)." Further the City indicates that "[t]he Court has supported this application of exemption ( c ). The city has been ordered to redact identifying information, including the name, address, employer, business address, telephone number (residence, business, cellular), age, social security number, and the names of any relative, girlfriend, fiance, or boyfriend, which when associated with other information that was the subject of a protective order would constitute an unwarranted invasion of personal privacy, pursuant to exemption (c). Worcester Telegram & Gazette Corp. v. Gary J. Gemme and City of Worcester, Worcester Superior Court No. 08-2742E, Doc. 12 (Jan. 13, 2010)." Additionally, the City states that it" ... is also entitled to redact complainant and witness names and identifying information pursuant to exemption (f), the investigatory exemption. Citing the language of Exemption (f), the City states that "[t]his exemption was designed to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Accordingly, identifying information relating to complainants and witnesses may be redacted as such information is exempt from disclosure pursuant to exemption (f)." 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, 432-33 (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

Joshua Maiiunas SPRl 9/1311 Page 4 July 15, 2019 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, 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. 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. 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

Joshua Martunas SPR19/1311 Page 5 July 15, 2019 withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Redacting !Afiles While it is the finding of this office that internal affairs investigation records are different from ordinary disciplinary records and may not be withheld as personnel records, this does not preclude a governmental entity from applying other exemptions from the Public Records Law to redact or withhold portions that ought to be so withheld. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9, n.8 (2003). Based on the City's response, I find the City may permissibly withhold identifying information pertaining to witnesses and complainants from disclosure under Exemption (f). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual); see also Antell, 52 Mass. App. Ct. at 248 ( discussing the appropriateness of redacting the identities of voluntary witnesses). Conclusion Accordingly, whereas I find the City has properly withheld the names and identifying details of the complainant and voluntary witnesses under Exemption (f), I decline to opine on the City's Exemption (c) claim supporting non-disclosure of the redacted information. I will now consider this administrative appeal closed. If Ms. Johnson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ r r ~ Supervisor of Records cc: Hayley Johnson