Carlton E. Williams v. Waltham, City of - Police Department (SPR 20201955)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR20/1955 Captain Donald A. Russo City of Waltham Police Department 155 Lexington Street Waltham, MA 02452 Dear Captain Russo: I have received the petition of Carlton E. Williams appealing the response of the City of Waltham (City) Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Williams requested: “any and all video, digital photographs, audio recordings or the like related to the investigation of [Incident Number 20022727 from August 11, 2020 involving three identified persons].” On October 9, 2020, the Department, through the City’s Law Department, provided a response indicating that the Department released one video recording to the public on August 13, 2020 and that it can be found on Department’s social media accounts. The Department provided the links to access the social media accounts. The Department also indicated it is withholding additional records, including video recordings other than the one already released to the public, under Exemption (f) due to an active and ongoing investigation. The Department is also withholding the records under the second clause of Exemption (c). As a result of the denial of records, Mr. Williams petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Mr. Williams asserts that the Department should have provided him with the original, physical copy of the video recording, instead of directing him to the record on the Department’s social media accounts. Records access officers (RAO) are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). If the public record requested is available on a public website, the RAO may furnish the public record by providing reasonable assistance in locating the requested record on the public website. See G. L. c. 66, § 6A(d). 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

Captain Donald J. Russo SPR20/1955 Page 2 October 27, 2020 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). 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290. In its initial October 9th response, the Department asserted, “[s]ince the investigation remains active, the premature disclosure of the records would, based on the Department’s review, compromise the [Department’s] investigation regarding the underlying criminal investigation and prosecution into criminal activity which occurred on August 11, 2020. The disclosure of the records would further compromise the [Department’s] confidential investigative

Captain Donald J. Russo SPR20/1955 Page 3 October 27, 2020 techniques in carrying out ongoing police investigations into the [incident], particularly as it relates to the locations of privately-owned security cameras.” On October 23, 2020, Katherine D. Laughman, Assistant City Solicitor, provided a further response to support withholding an additional video, obtained from a private security camera. Attorney Laughman states, “as no criminal complaint has issued in this matter, the premature disclosure of confidential investigatory techniques, including the location and ownership of private security cameras, is information that cannot be disclosed without compromising the source of the video evidence. Public disclosure of these videos could also have the effect of allowing for the identification of neighborhood witnesses and people that provided information to the [Department] officers investigating this matter.” Based on the Department’s October 9th and October 23rd responses, I find that the Department has not met its burden of specificity in withholding the additional video evidence of the August 11th incident due to an active and ongoing investigation, and to protect the identities of the witnesses providing information to the Department for the investigation under Exemption (f). The Department’s October 9th and October 23rd responses, do not provide sufficient support on whether the location of the private security cameras are secret or whether the cameras are in plain sight. Furthermore, the Department does not specify whether the video recording can be redacted to protect the anonymity of any witnesses to the incident. Therefore, the Department did not meet its burden of specificity under Exemption (f), and must provide further clarify on its decision to withhold the video recording in its entirety. 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 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). Second clause of (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.

Captain Donald J. Russo SPR20/1955 Page 4 October 27, 2020 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 October 9th response, the Department indicates that the requested video recording is also being withheld under the privacy clause of Exemption (c). The Department posits, “…it appears that the record contains unresolved allegations regarding specifically identified individuals. Release of the video footage of private citizens, obtained from private security cameras, may implicate the privacy rights of the individuals pictured therein and may lead to speculation as to the subjects’ reputations and professional competence. Citing, Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 292 (1979); G. L. c. 214, § 1B (right against unreasonable invasion of personal privacy)…Thus, in light of all these circumstances…the [Department] has determined that it cannot disclose the requested additional video evidence at this time without potentially violating the privacy interests of third parties…” In its October 23rd response, the Department states, “…the additional video evidence collected as part of an investigation into an incident that has not yet resulted in the issuance of a criminal complaint may violate the privacy of the individuals depicted and has the potential to result in public speculation and damage to those individuals’ reputations.” The Department did not provide information pertaining to the 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. Nor, did the Department provide the balancing test which provides that where the public interest in obtaining the requested information substantially

Captain Donald J. Russo SPR20/1955 Page 5 October 27, 2020 outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. Unique right of access In the Department’s October 23rd response, Attorney Laughman states, “…to the extent Mr. Williams is providing legal representation, he would have the ability to access such records through the regular discovery process. See 950 C.M.R. 32.06(1)(g) (a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records.” Conclusion Accordingly, the Department has not met its burden of specificity to withhold the additional video recordings, in their entirety. The Department is ordered to provide Mr. Williams with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Mr. Carlton E. Williams