Andrew Quemere v. Bristol County Sheriff's Office (SPR 20201407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 26, 2020 SPR20/1407 Lorraine Rousseau, Esq. Records Access Officer Bristol County Sheriff’s Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Andrew Quemere appealing the response of the Bristol County Sheriff’s Office (Office/BCSO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 29, 2020, Mr. Quemere requested “[a]ll video of the May 1 incident involving ICE detainees at the Bristol County Jail (the incident mentioned in this article).” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1009 Determination of the Supervisor of Records (July 8, 2020). In my July 8th determination, I found that the Office had not met its burden to withhold responsive records in their entirety under Exemptions (f) and (n). Accordingly, I ordered the Office to provide Mr. Quemere with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Office provided a supplemental response dated August 18, 2020. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1407, 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, § 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 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

Lorraine Rousseau, Esq. SPR20/1407 Page 2 August 26, 2020 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 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 Office’s August 18th response In its August 18, 2020 response, the Office lists 34 video recordings and asserts that they are exempt from disclosure pursuant to Exemptions (a), (c), and (f) of the Public Records Law. 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. Under Exemption (a), the Office states that the recordings are exempt “. . . as protected CORI under G.L. c. 6, §§ 167 et seq. and G.L. c. 66, § 10.”

Lorraine Rousseau, Esq. SPR20/1407 Page 3 August 26, 2020 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 of Exemption (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 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., 388 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 of Exemption (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).

Lorraine Rousseau, Esq. SPR20/1407 Page 4 August 26, 2020 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 Office indicates that the recordings “. . . show[] ICE Detainees, BCSO employees and medical personnel; and thus, is exempt from disclosure in their entirety under G.L. c. 4, § 7(26)(c), the ‘privacy exemption’, the release of which would constitute an unwarranted invasion of personal privacy[.]” 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 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, 378 Mass. at 290 n.18. 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 Office explains that the incident is “. . . under investigation by BCSO and federal and state law enforcement agencies and [] may result in criminal charges, including, but not limited to, assault and property damage; and thus, is exempt from disclosure in its entirety under G.L. c. 4, § 7(26)(f) . . .” The Office further explains that disclosure of the responsive records “will reveal confidential investigative techniques or procedures, will discourage ICE Detainees to speak freely about matters under investigation, will prevent security personnel from [] including their candid observations, hypotheses and interim conclusions as to persons involved in incidents, and will interfere with investigations being conducted by outside law enforcement agencies with respect to determinations of witness credibility, evidentiary weight given to each item, inferences drawn from witness statements, reports and other evidence, the prejudice resulting from the disclosure of material prior to the conclusion of the external

Lorraine Rousseau, Esq. SPR20/1407 Page 5 August 26, 2020 investigations, and the chilling effect to witnesses; and thus, is exempt from disclosure in its entirety under G.L. c. 4, § 7(26)(f), the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” With respect to whether records can be redacted, the Office posits that the records are “. . . incapable of being redacted or blurred by the BCSO in any manner; and thus, is exempt from disclosure in its entirety.” Subsequent to the opening of this appeal, I learned that on August 19, 2020, the Office provided Mr. Quemere with a supplemental response pertaining to this request. Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Quemere may appeal the substantive nature of the Office’s August 19th response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere