Michael S. Lalikos v. Cambridge, City of - Law Department (SPR 20192145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 1, 2019 SPR19/2145

Seah Levy

Records Access Officer City of Cambridge

Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139

Dear Seah Levy:

I have received the petition of Michael S. Lalikos, Esq. of Schneider & Lalikos, LLP appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 25, 2019 and September 25, 2019, Attorney Lalikos requested: “...a copy of the 911 call for [an identified person’s case]. This motor vehicle collision involving our client occurred on 10/31/2017 near Rodgers Funeral Home in Cambridge at or about 8:10 a.m. I have attached our copy of the police report. We are hoping the 911 call will provide us insight on whether there was a witness to the events andifso . what they may have seen.” :

In an initial May 9, 2019 response by the City, Attorney Lalikos was denied a copy of the 911 call recording in its entirety under Exemptions (c) and (f) of the Public Records Law. After Attorney Lalikos’ second request on September 25", you denied the request again on October 7", asserting, “...please be aware that the Emergency Communications Department, as part of the [City], follows the City’s policy of not releasing 911 calls unless the request[o]r made the call themselves, or can provide a release from the individual(s) who made the call, that was outlined in my response to you on 5/9/2019.”

As a result of the City’s denial, Attorney Lalikos petitioned the Supervisor of Records (Supervisor), and this administrative appeal was opened.

- Status of the requestor; reason for the request In his October 16" petition, received by this office on October 18", Attorney Lalikos |

states, “[j]udicial economy merits this inquiry so that it can be determined if there was a witness to this incident, and a lawsuit avoided. I, as an attorney, will make sure privacy is maintained.”

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

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It is important for Attorney Lalikos to understand that his interest in the responsive record does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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 Lalikos’ status as an attorney will play no role in a determination as to whether the record should be disclosed to the public in its entirety. .

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, § 10A(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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based...”); 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).

If there are any fees associated with a response a written, good faith estimate must be — provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Exemption (c) Exemption (c) applies to:

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).

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). The City’s October 30, 2019 response to this appeal asserts the second clause of Exemption (c), the privacy clause, applies to allow the City to withhold the 911 call recording in its entirety.

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Second clause of (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. 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.

In its October 30" response, the City indicates, “...the statements made in the pertinent 911 call, the voices of the callers for emergency assistance and anyone else on the phone call, their intonations and inflections, as well as any background noises, are intimate details of a highly personal nature implicating substantial privacy interests.” The City also indicates that Attorney Lalikos purpose in requesting the 911 recording is to determine the existence of a _ witness to the motor vehicle accident that is subject of Attorney Lalikos’ client’s personal injury claim. The City posits that Attorney Lalikos’ request does not substantially outweigh the invasion of privacy that would occur from disclosure of the 911 recording.

Despite the City’s October response, it has not provided information to establish how the withheld record, even in a redacted format, constitutes the type of personal information which would cause embarrassment to an individual of normal sensibilities if disclosed; would constitute an intimate detail of a highly personal nature; and is not available from other sources. See PETA, 477 Mass. 292. Therefore, the City has not met its burden of specificity in withholding the 911 recording, in its entirety, under the second clause of Exemption (c).

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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 material would probably so prejudice the possibility of effective law enfor cement 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 on-going 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.

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 withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding - an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438.

The City’s October response intimates that release of the 911 recording would directly or indirectly identify a witness to the incident. The City posits, “...producing such information could have a chilling effect on witnesses voluntarily coming forward, which in turn could prejudice investigations and the possibility of effective law enforcement. The rationale is especially applicable here as [Attorney] Lalikos is not a caller and no authorization permitting disclosure of the 911 recording to [Attorney] Lalikos from the person who made the 911 call has been provided with respect to the [o]riginal [r]equest or [s]econd [r]Jequest. Thus, production of the requested 911 recording is not required under Exemption (f) of the Massachusetts Public Records Law.”

With respect to Exemption (f), while the City claims that the call would not be in the public interest because disclosure would have a chilling effect on individuals coming forward and providing information in future situations or cases, it is unclear why redaction of identifying information of any voluntary witness is not possible to preserve witness anonymity. See Antell, | 52 Mass. App. Ct. at 248. It is additionally unclear how disclosure of any segregable portion(s)

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of the responsive record records would create a grave risk of directly or indirectly identifying a voluntary witness. See Globe Newspaper Co., 388 Mass at 438. .

As aresult, the City has not met its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Conclusion

Accordingly, the City is ordered to review the 911 recording, redact where necessary, and provide Attorney Lalikos with a copy of the record, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Mu

rray Supervisor of Records

| ce: Michael S. Lalikos, Esq., Schneider & Lalikos, LLP Sean M. McKendry, Esq., City of Cambridge