Nicholas Kosiavelon v. New Bedford, City of - Police Department (SPR 20191734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe1visor ofR ecords September 11, 2019 SPR19/1734 Annemarie P. Lefever Records Access Officer City of New Bedford - Police Department 871 Rockdale A venue New Bedford, MA 02740 Dear Ms. Lefever: I have received the petition of Nicholas Kosiavelon, Esq. of Boyle Shaughnessy Law PC appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 25, 2019, Attorney Kosiavelon requested the following records regarding a November 26, 2018 incident involving an identified individual: "1. The logs, run sheets, call \·ecordings, and other documents and materials generated as a result of, or in connection with the incident. 2. All photographs taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident. 3. All reports, citations, notes, memorandum, correspondence, email or other paper and/or documents generated or otherwise obtained during, in connection with, and/or as a result of the incident. 4. All evidence taken from the scene relative to the incident. 5. All statements taken from any person associated with the incident. 6. All 911 calls, transcripts and/or tapes generated as a result of, or in connection of the incident. 7. If for some reason not included in 1-6 above, any document, photograph, sketch or other material generated or otherwise obtained during, in connection with, and/or as a result of the incident." The Department responded on July 22, 2019, providing certain records in redacted form and denying access to other 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, Attorney Kosiavelon petitioned this office and this appeal, SPRl 9/1734, was opened as a result. It appears Attorney Kosiavelon is only appealing the Exemptions (c) and (f) claims made by the 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

Annemarie P. LeFever SPR19/l734 Page 2 September 11, 2019 Department. 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 Kosiavelon'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(l)(a) (the administrative appeal process "shall riot 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 such, Attorney Kosiavelon may wish to consider another means of seeking to obtain any existing responsive records. 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 01· 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Annemarie P. LeFever SPR19/1734 Page 3 September 11, 2019 The Department's July 2211d response In its July 22, 2019 response, the Department indicates that it possesses the following responsive records: "1) Incident Report# 18-15035-0F (produced redacted)[;] 2) NBPD Audio recordings (withheld); 911 calls and dispatch communications (withheld)[;] 3) 125 Images related to incident report# 18-15035-0F (produced)[;] 4) 2 surveillance camera files related to incident report# 18-15035-0F (produced)[;] 5) Video recorded statement of witness re incident report# 18-15035-0F (withheld)." The Department claims Exemptions (a), (c), and (f) to redact and withhold portions of the responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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. . Under Exemption (a), the Department claims that it" ... withheld patient information on these recordings pursuant to the HIPP A Privacy Rule, 45 C.F.R. § 164.502(a)(l) and exemption (a) of the MA Public Records Law." Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data

Annemarie P. Lefever SPR19/1734 Page4 September 11, 2019 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). Only the second clause of Exemption (c) is applicable to this determination. The first clause, relevant to this detennination, 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). 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. Tones 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. 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.

Annemarie P. LeFever SPR19/l 734 Page 5 September 11, 2019 Under Exemption ( c) , the Department explains that it " ... redacted highly personal infonnation of specific individuals on the incident report pursuant to [Exemption ( c)] .... Categories of identifying information redacted under this exemption includes, dates of birth, personal telephone numbers, and social security numbers, and information relating to patient's medical condition or treatment." The Department cites PETA to support its position. With respect to 911 Audio calls and dispatch communications, the Department indicates that it" ... withheld these recordings describing the patient's condition and treatment pursuant to [Exemption ( c)] .... Categories of identifying information redacted under this exemption include home/ cellular telephone numbers and infonnation relating to a patient's medical condition or treatment." Based on the Department's response, to the extent that records contain medical information that relates to an identifiable individual, I find the Department may permissibly withhold such portions from disclosure under the first clause of Exemption (c). With respect to the second clause of Exemption ( c ), aside from dates of birth, social security numbers, and personal telephone numbers, it appears the Department redacted other infonnation from the responsive records. However, the Department has neither demonstrated that the redacted portions are intimate details of a highly personal nature nor how disclosure would result in personal embatnssment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA , 4 77 Mass. at 292. Also, the Deparhnent did not provide additional information regarding the balancing test set'out in the second clause of Exemption ( c ), which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these issues. Additionally, although the Department claims that the" ... 911 Audio calls and dispatch communications, contain information ... describing the patient's condition and treatment pursuant to [Exemption (c)][,]" it is unclear how the records cannot be redacted to remove such infonnation from the responsive records. It is additionally uncertain how dispatch communications contain intimate details of a highly personal nature as contemplated in PETA. Id. at 292. The Department must clarify these issues. 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).

Annemarie P. LeFever SPRl 9/1734 . Page 6 September 11, 2019 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, 3 71 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 infonnation 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., 388 Mass. at 438. 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. Under Exemption (f), the Depaiiment indicates that it" ... redacted ... names and · identifying infonnation of the victim(s) and voluntary witness as well as witness statement ...." The Department further states that it withheld a video recorded statement of a witness," .. . which contains the image, name and identifying infonnation of the voluntary witness as well as his statements." The Department explains that the records were redacted and/or withheld because disclosure" ... would create a grave risk of directly or indirectly identifying the witnesses. The redaction of this infonnation is designed to allow the Department's investigators to continue to provide assurance of confidentiality to private citizens so that they will speak openly about matters under investigation." The Department cites Bougas and Globe Newspaper Co. Based on the Department's response, to the extent that the recording contains identifying infonnation of victim(s) and a voluntary witness, I find the Department may pennissibly withhold such pmiions from disclosure. However, with regards to the video recorded witness statement, although the Department indicates that the recording contains the " ... image, name and identifying information of the voluntary witness ... [,]" it is unclear why the recording cannot be redacted to preserve the anonymity of the voluntary witness. It is additionally uncertain how redacting identifying infonnation from the recording would create a grave risk of directly or indirectly identifying the witness.

Annemarie P. LeFever SPRI9/l 734 Page 7 September 11, 2019 The Department is reminded that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the stah1tory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is ordered to provide Attorney Kosiavelon with a response to the request, provided in a manner consistent wjth 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, ~a~ Supervisor of Records cc: Nicholas Kosiavelon, Esq.