Colman Herman v. Brookline, Town of - Police Department (SPR 20192542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records . January 13, 2020 SPR19/2542

Amanda Williams

Records Clerk

Town of Brookline — Police Department 350 Washington Street

Brookline, MA 02445

Dear Ms. Williams:

I have received the petition of Colman Herman appealing the response of the Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 17, 2019, Mr. Herman requested a copy of the police report relating to the death of a named individual. On December 26, 2019, the Department provided a response, which included responsive records in redacted form. The records were - redacted 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, Mr. Herman petitioned this office and this appeal, SPR19/2542, 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, § 1OA(d); 950 C.M.LR. 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); 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

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

Amanda Williams , SPR19/2542 Page 2 January 13, 2020

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.

The Department’s December 26" response

In its December 26, 2019 response, the Department indicates that it is providing records “.., minus redactions that are required pursuant to MGL 4 sec 7(26)(a),(c) and (f).” The . Department explains that “(a) refers to the dissemination of information relating to a statutory exemption which ‘specifically or by necessary implication exempted from disclosure by statute’, (c) refers to ‘intimate detail of a highly personal nature’ such as birth dates and other identifying information and cannot be disseminated. (f), refers to withholding witness statements and identification and are definitely exempt.”

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 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.

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

Amanda Williams SPR19/2542 Page 3 January 13, 2020

an unwarranted invasion of personal privacy G.L. c. 4, § 7(26)(c). Second clause of Exemption (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 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.

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).

Amanda Williams SPR19/2542 Page 4 January 13, 2020

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.

The Department’s response did not contain the specificity required in a denial of access to public records, Instead, the Department’s response merely cites Exemptions (a), (c), and (f) without any further explanation as to the exemptions’ applicability to the requested records.

The Department is advised that when claiming Exemption (a), a records custodian must claim a statute that either specifically or by necessary implication exempts the requested records from disclosure as required by the Public Records Law. See G. L. c. 4, § 7(26)(a). As such, the Department must cite the statute that permits it to withhold information redacted from the responsive records. With respect to Exemption (c), although the Department indicates that “. . . (c) refers to ‘intimate detail of a highly personal nature’ such as birth dates and other identifying information and cannot be disseminated[,]” it is uncertain what information was redacted from the responsive records under this exemption and how the information constitutes an intimate detail of a highly personal nature. Further, with respect to Exemption (f), although it permits the redaction of identifying information regarding a voluntary witness, it is unclear what other information was redacted pursuant to this exemption and how its disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required under Exemption (f). Consequently, I find the Department has not

met its burden of specificity in responding to this request, and it must clarify these matters. See G. L. c. 66, § 10(b)(iv).

Conclusion

Accordingly, the Department is ordered to provide Mr. Herman 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.

Amanda Williams SPR19/2542 Page 5 January 13, 2020

Sincerely,

Rebecca S. Mur Polsveco. Muay —

Supervisor of Records

ec: Colman Herman