David Zuares v. Department of State Police - State 911 (SPR 20201148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2020 SPR20/1148 Robin Remillard Records Processing Officer PSAP Operations Massachusetts State 911 Department 470 Worcester Road Framingham, MA 01702 Dear Ms. Remillard: I have received the petition of David J. Zuares, Esq. of Murphy & Riley, P.C. appealing the response of the State 911 Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2020, Attorney Zuares requested copies of all records relating to an identified incident at Logan Airport. In a May 28, 2020 response, the Department informed Attorney Zuares that it identified 911 records responsive to his request. However, the Department is withholding the 911 recording pursuant to Exemption (f) of the Public Records Law. The Department’s May 28th response also states, “…our office would be able to provide the records at issue in response to compulsory legal process (i.e., subpoena or court order) or with a notarized waiver from each caller. An example of such waiver is attached.” As a result of the Department’s denial, Attorney Zuares petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Zuares asserts, “[w]e understand that the Department intends to argue that release of the recordings would prejudice effective law enforcement. Given that the calls were not made as part of – and have no legitimate relationship to – any law enforcement investigation, it is inconceivable that disclosure of these records would have any effect on law enforcement.” Status of the requestor; reason for the request In his request and petition, Attorney Zuares indicates that his firm represents two identified individuals involved in the incident. Please note that Attorney Zuares’ status as an attorney representing individuals involved in the underlying matter 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 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

Robin Remillard SPR20/1148 Page 2 July 23, 2020 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 Zuares’ status and that of his clients 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. The Department’s May 28, 2020 and July 21, 2020 responses The Department’s May 28th response indicates that it is withholding the 911 recordings, in their entirety, under Exemption (f) because they constitute voluntary witness statements, and will deter witnesses from coming forward, and prejudice effective law enforcement. In response to this appeal, the Department provided a July 21st response, claiming Exemption (f) and both clauses of Exemption (c) to withhold the 911 records in their entirety. Exemption (f) In its May 28th response, the Department cites Exemption (f) as applicable to withhold the 911 recording and explains the record is being withheld “for two separate reasons: (1) for the purpose of encouraging full participation by voluntary witnesses so that they will speak openly to law enforcement; and (2) for the purpose of safeguarding the unsolved homicide investigation.” Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Robin Remillard SPR20/1148 Page 3 July 23, 2020 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 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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 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. Identifying witness information In its May 28th response, the Department asserts, “[a] person's voice and the corresponding audio recording of a 911 call is identifying. The investigative exemption allows for the withholding from public disclosure any information contained in a statement which, if disclosed, would create a grave risk of directly and indirectly identifying voluntary witness(es).”

Robin Remillard SPR20/1148 Page 4 July 23, 2020 In the July 21st response, the Department asserts, “[e]mergency 911 recordings contain voices of individuals, including witnesses and complainants, who call 911 to report crimes and report disturbances, and/or accidents. Given that these recordings contain identifiable information, the recordings themselves and the dialogue contained in them are exempt.” Despite the Department’s responses, it remains unclear why the responsive 911 calls cannot be redacted to preserve witness anonymity as the Department has not established how the record in its entirety identifies the witnesses. See Antell, 52 Mass. App. Ct. at 248. I find that the Department has not established that it cannot redact the recordings to preserve the witnesses’ anonymity. If the Department cannot redact the recordings, it may provide a transcript of the 911 calls as a means of altering the record to protect witness anonymity if it may not do so by other methods. See G. L. c. 66, § 10(a)(ii). Exemption (c) In its July 21st response, the Department also cites Exemption (c) to withhold the 911 call recordings. 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). 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 will be of a sufficiently personal nature 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). The Department states in its July 21st response to Attorney Zuares, “[t]he State 911 Department considers the requested 911 recordings regarding callers seeking medical assistance, as in the calls that are the subject of your records request, to be exempt...[t]hese calls relate to medical situations, reveal medical conditions, and are highly personal in nature.” To the extent the recordings contain medical information relating to a specifically named individual, they may be redacted. However, it is unclear why the Department cannot redact the

Robin Remillard SPR20/1148 Page 5 July 23, 2020 protected medical information and release the remaining portions. I find that the Department has not met its burden to withhold the entirety of the record under the first clause of Exemption (c). Second clause of (c) – privacy The Department has also claimed that the 911 calls contain private information that may be withheld under the second clause of Exemption (c). 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 July 21st response, the Department claims that there is information on the recording that implicates the second clause of Exemption (c). The Department asserts “…callers are often experiencing a traumatic event or possibly the worst moment of their lives, while offering the 911 Dispatcher intimate details of their personal lives in the hope that law enforcement officials and/or emergency personnel will respond to assist them. The public’s right to disclosure of private information of a medical nature is overwhelmed by the public interest in guaranteeing callers that intimate details of their medical information will remain private, and this reassurance will promote public safety by encouraging the confidential usage of 911 services.” The Department did not provide sufficient support for withholding the 911 recordings, in their entirety, under the privacy clause of Exemption (c). For example, it is unclear how the statements made by the 911 operator may be withheld under Exemption (c).

Robin Remillard SPR20/1148 Page 6 July 23, 2020 Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. - - - - v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemptions (c) and (f). 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, Attorney Zuares requested “any and all documents or reports in the possession of the State 911 Department relating to the State Police Department’s response to the alleged accident;” however, the May and July responses only address 911 recordings. It is uncertain whether the Department has additional responsive records pertaining to the request in its possession, custody or control. The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Attorney Zuares with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: David J. Zuares, Esq., Murphy & Riley, P.C.