Amy M. Belger v. Boston, City of - Police Department (SPR 20192424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor of Records December 19, 2019 SPR19/2424 Shawn A. Williams, Esq. Director of Public Records City of Boston - Police Department 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Amy M. Belger, Esq. appealing the response of the Boston Police Depaiiment (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on September 27, 2019, Attorney Belger requested "[a]ll documents in the possession of the Boston Police Department relative to the investigation into" a particular homicide. The Department responded on November 12, 2019, indicating that it did not have control of the records and citing Exemptions (a), (c), and (f), to withhold responsive records from disclosure. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Attorney Belger petitioned this office and this appeal, SPRl 9/2424, 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, § 1O (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. · 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

Shawn A. Williams, Esq. SPR19/2424 Page 2 December 19, 2019 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 custodian must provide the responsive records. The Department's November J2t" response In its November 12, 2019 response, the Department indicates that " ... responsive records consist of police repo1is, photographs and recordings, witness statements and other records that are contained in a case file associated with a homicide investigation." The Department states that "[t]he public records law applies to records that are in the 'possession, custody or control' of a governmental entity. See G. L. c. 66, § 10 (a) (ii), (iii); (c). The [Department] has physical 'custody' of a copy of the homicide records. The Suffolk County District Attorney has both 'custody' and 'control' [of] its copy of homicide records." The Department provided the contact information for the Suffolk County District Attorney's Office, as well as the Supreme Judicial Cami and the Department of Correction. The Department further states that the records are exempt under Exemptions (a), (c), and (f). Public records in the possession, custody or control of a records custodian In its response, the Department states that it" ... has physical 'custody' of a copy of the homicide records. The Suffolk County District Attorney has both 'custody' and 'control' [of] its copy of homicide records." As such, the Department" ... has no authorization to release copies of homicide records, as the 'control of those copies lies solely with the Suffolk County District Attorney's Office and other officers that may be able to assist [Attorney Belger]." The Department is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request (emphasis added). See G. L. c. 66, § lO(a)(ii), (b)(ii). Where the Department has indicated that it possesses certain responsive records, I find the Department has not met its statutory and regulatory obligation under the Public Records Law in denying access to the records. 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 Cami, 372 Mass. 539, 545-46 (1977).

Shawn A. Williams, Esq. SPR19/2424 Page 3 December 19, 2019 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 indicates that G. L. c. 38, § 4, " ... relates to homicides, and mandates that '[t]he district attorney or his law enforcement representative shall direct and control the investigation of the death and shall coordinate the investigation with the . office of the chief medical examiner and the police department within whose jurisdiction the death occurred.' ..." The Department indicates that because of this statute, it" ... has no authorization to release copies of homicide records, as the 'control of those copies lies solely with the Suffolk County District Attorney's Office and other officers that may be able to assist [Attorney Helger]." The Department asse1is that it will not provide any responsive records and suggests that Attorney Helger contact other governmental offices for assistance. Based on the Depa1iment' s response, it is unclear how the cited statute permits it to withhold the records from disclosure. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites G. L. c. 38, § 4, it remains unclear how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. 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). 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). The first clause, creates a categorical exemption for personnel and medical information that relates to

Shawn A. Williams, Esq. SPR19/2424 Page4 December 19, 2019 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 Co., 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. 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. Under Exemption ( c ), the Depmiment states that the records " ... contain medical information about specific individuals. The records contain intimate details of a highly personal nature where the public interest does not outweigh the privacy interest and the information is not generally available from other public sources." With respect to the first clause of Exemption (c), to the extent that records contain medical information about an identifiable individual, the Department may withhold such portions from disclosure. With respect to the second clause of Exemption ( c ), I find the Department has not demonstrated how the responsive records constitute intimate details of a highly personal

Shawn A. Williams, Esq. SPR19/2424 Page 5 December 19, 2019 nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Consequently, the Department has not identified any privacy interests that outweigh the public interest in disclosure of the requested information. 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 effmis in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could ale1i 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. Under Exemption (f), the Depmiment states that "[t]he records contain witness statements where the witness has an expectation of confidentiality with respect to identifying information .. Homicide investigations are considered ongoing and open as there is no statute of limitations on prosecution ...." While the Department claims that "[h]omicide investigations are considered ongoing and open as there is no statute of limitations on prosecution[,]" it is unclear how this pmiicular homicide investigation remains ongoing, nor does the Depmiment describe how the requested . records are part of the investigation. Fmiher, the Department did not demonstrate how disclosure of the responsive records or segregable portions thereof "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). It is additionally unce1iain why the Department cannot redact witness identifying information from the responsive records to preserve his or her anonymity. See Reinstein v. Police Comm'r of Boston, 378 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, § 1O (a).

Shawn A. Williams, Esq. SPR19/2424 Page 6 December 19, 2019 Conclusion Accordingly, the Department is ordered to provide Attorney Belger with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Murray Supervisor of Records cc: Amy M. Belger, Esq.