Dennis J. Driscoll v. Essex County Sheriff's Department (SPR 20192082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 25, 2019 SPR19/2082 Scott B. Sullivan, Esq. Essex County Sheriffs Depaiiment 20 Manning Ave. Middleton, MA O1 949 Dear Attorney Sullivan: I have received the petition of Dennis J. Driscoll appealing the response of the Essex County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Driscoll requested recordings of 911 calls regarding a motor vehicle accident that occurred on 93 North in North Andover, MA on June 8, 2019. Previous Appeal The requested records have been the subject of previous appeals. See SPR 19/1336 Determination of the Supervisor of Records (July 18, 2019); SPR 19/1466 Determination of the Supervisor of Records (July 29, 2019). In my July 18th determination I found that the Department had not met its burden of specificity to withhold the responsive records pursuant to Exemptions (c) and (f). The Department provided a supplemental response on August 18, 2019, providing additional information regarding the applicability of Exemptions (c) and (f) to the requested records. Unsatisfied with this response, Mr. Driscoll petitioned this office and this appeal, SPR 19/2082, 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, § 1 OA( 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 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

Scott B. Sullivan SPR19/2082 Page 2 October 25, 2019 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. Current Appeal In its August 16, 2019 response, the Department stated that it has withheld "recorded 911 calls from members of the public in its possession with respect to the incident" pursuant to Exemptions (c) and (f) of the Public Records Law. Exemption (c) · Exempt~on ( 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 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. App. Ct. 41 S, 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.

Scott B. Sullivan SPR19/2082 Page 3 October 25, 2019 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 ofrecords 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. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. In its August 18111 supplemental response, the Department argues that "[b] y shielding the identi[ties] of such individuals who come forward voluntarily, they are both encouraged, and can feel free to bring information forward and speak freely ... without fear of their identity being disclosed." The Department further stated that "all of [the 911 callers] could potentially be witnesses in the underlying investigation." In its October 9, 2019 email response to Mr. Driscoll's petition, the Department stated that is has confirmed with the Massachusetts State Police than an investigation into this incident remains ongoing. The Department has likewise demonstrated that disclosure, including witness identities and statements, could have a detrimental effect on the investigation. Therefore, the Department has met its burden to justify withholding the responsive records under Exemption (f)

Scott B. Sullivan SPR19/2082 Page 4 October 25, 2019 at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion . Accordingly, whereas I find the Department may permissibly withhold the responsive records form disclosure under Exemption (f) at this time, I decline to opine on the Department's Exemption ( c) claim supporting non-disclosure of the withheld documents. I will now consider this administrative appeal closed. Sincerely, ~y~ Supervisor of Records cc: Dennis J. Driscoll