Hector E. Pineiro v. Worcester, City of (SPR 20201857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2020 SPR20/1857 Michael Vigneux Records Access Officer City of Worcester Law Department 455 Main Street, Room 303 Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Hector Pineiro, Esq. of the Law Office of Hector E. Pineiro, PC (Law Office) appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 8, 2020, Attorney Pineiro requested the following records: 1. Any incident report, daily log, summary, IDC reports or supplemental police reports submitted by any WPD officer that came in contact with [an identified individual] and his mother on 9/25/2017 2. All supplemental police reports that have been generated in connection with this incident. 3. Any WPD Policies or Guidelines regarding police interactions with disabled individuals and/or individuals with Autism existing on 9/25/2017 4. Any WPD Policies or Guidelines regarding police interactions with disabled individuals and/or individuals with Autism existing today. 5. Any WPD use of force policies that deal with detention of children 6. WPD Section 12 Policies 7. Any WPD records that reflect the Section 12 requested by [an identified officer] 8. A copy of the transcribed and audio interview of [an identified individual] by officers from the Bureau of Professional Standards 9. Copy of any transcribed interviews of any officers involved with [an identified individual’s] case, 10. Copy of any transcribed interviews of any other percipient witness. 11. Any use of force reports prepared by the officers that came in contact with [an identified individual] 12. Any 911 calls between [an identified individual] and the Police, the police 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

Michael Vigneux SPR20/1857 Page 2 October 14, 2020 officers and the WPD dispatcher 13. An unredacted copy of the entire WPD Bureau of Professional Standards investigation conducted by the City in connection with this incident along with the conclusions of this investigation. 14. Any letters sent by Chief of Police Sargent to [an identified individual] notifying her of the outcome of the BOPS investigation[.] The City provided a response on September 22, 2020, providing certain records but denying access to other portions of the records pursuant to Exemptions (c) and (d) of the Public Records Law. G. L. c. 4, § 7(26)(c), (d). Unsatisfied with the City’s response, Attorney Pineiro petitioned this office and this appeal, SPR20/1857, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record 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 Pineiro’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Attorney Pineiro may wish to consider another means of seeking to obtain any existing responsive records. 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); 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

Michael Vigneux SPR20/1857 Page 3 October 14, 2020 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 City’s September 22nd response In its September 22, 2020 response, the City indicates that the requested polices are available on its website and provides a link. Regarding the rest of the records, the City cites Exemptions (c) and (d) to withhold responsive records. 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, 432-33 (1983). The first clause creates a categorical exemption for medical information that relates to an identifiable individual and is of a “personal nature.” Globe Newspaper Co., 388 Mass. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan, 401 Mass. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Id. 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). With respect to Exemption (c), the City states that Attorney Pineiro “. . . requested police incident reports, internal affairs reports, internal affairs records, and other records related to a medical incident involving [an identified individual]. The records you have requested contain personal medical information, the disclosure of which would result in an invasion of personal privacy of an identified individual.” Citing the Globe decision, the City explains that “[t]he responsive records pertain to the medical condition of a specifically identified individual. You have specifically named the individual who is the subject of these reports. The records cannot be sufficiently deidentified to protect the privacy interests at issue. The responsive records have been withheld accordingly.”

Michael Vigneux SPR20/1857 Page 4 October 14, 2020 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). Under Exemption (d), the City states that “. . . records requested under items 8-10 and 13- 14 are further exempt pursuant to Massachusetts General Laws c. 4 § 7 cl. 26 (d), as these records are directly related to open and ongoing litigation to which the City is a party (Lindsay M. Beshai Torres PPA, JT a Minor v. Officer John R. Alers, et al. 40-cv-40115-TSH).” The City explains that “Massachusetts courts and the Massachusetts Supervisor of Records have found that records related to ongoing litigation fall within exemption (d). A government entity may use the deliberative process exemption as a basis for withholding requested materials where the deliberative process is ‘ongoing and incomplete.’ Lafferty v Martha’s Vineyard Comm’n, No. 03-3397, 2004 WL 792712 (Mass. Super. Apr. 9, 2004), at *3. A public entity, when engaged in litigation, should not be impeded in its defense of matters by being required to produce documents that are the subject of the litigation due to its status as a public entity. See DaRosa v. City of New Bedford, 471 Mass. 446, 453-4 (2015). The requested records pertain to ongoing and incomplete litigation. Release of these records could impact the ongoing proceedings; the requested records, if they exist, are exempt from disclosure and have been withheld accordingly.” Pending litigation In his appeal petition, Attorney Pineiro states that his client “. . . did file a federal lawsuit alleging violation to her civil rights against the two police officers that came in contact with her son. See Beshai v. Officer John R. Alers, et al, Civil Action No. 40-cv-40115-TSH (D. Mass. Sept. 8, 2020).” 950 C.M.R. 32.08(2)(b) provides in pertinent part:

Michael Vigneux SPR20/1857 Page 5 October 14, 2020 the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Whereas the public records in question are the subjects of disputes in active litigation, I decline to opine on this matter. It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Hector Pineiro, Esq.