Daniel DeFraia v. Boston, City of - Police Department (SPR 20201991)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2020 SPR20/1991 Sergeant Detective John Boyle City of Boston Police Department Office of Media Relations 1 Schroeder Plaza Boston, MA 02120 Dear Sergeant Detective Boyle: I have received the petition of Daniel DeFraia appealing the response of the City of Boston 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. DeFraia requested: 1. Data showing how many U-Visas the Department has provided and denied since 2000; 2. Copies of any policies or procedures that outline the Department’s process in reviewing U-Visa certification requests; 3. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records) approved by the agency in 2018; and 4. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records) denied by the agency in 2018. In a July 21, 2020 email, Mr. DeFraia explained to the Department that he received the U-Visa data for 2017-2020; however, he still seeks the data from 2000-2017. He also states that he is still interested in receiving requested policies or procedures. In addition, Mr. DeFraia modified/narrowed his request for the Supplement B records to just years 2017-2020. He asserts, “[e]ssentially, all I’m looking for is the record the Department sends certifying (or not) a U- Visa.” In an October 15, 2020 response, the Department asserts that it provided information via telephone regarding Requests 1 and 2. However, Mr. DeFraia refutes that he ever received the information or records for his Requests 1 and 2. The Department denied the request for the Supplement B and accompanying records in their entirety under Exemptions (a), G. L. c. 41, § 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

Sgt. Detective John Boyle SPR20/1991 Page 2 October 29, 2020 97D; G. L. c. 41, § 98F and G. L. c. 209a, § 8; the second clause of Exemption (c) and Exemption (f) of the Public Records Law. As a result, Mr. DeFraia petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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. 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.”

Sgt. Detective John Boyle SPR20/1991 Page 3 October 29, 2020 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. G. L. c. 41, § 97D states: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims' counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 .... G. L. c. 41, § 97D The Department also cites G. L. c. 41, § 98F (police daily call log) and G. L. c. 209(a) (which pertains to restraining order/no contact orders). However, the Department does not explain how the U-Visa certification records are reports of sexual assault or domestic violence, or police daily call logs or restraining order records. It is unclear why the U-Visa certification records cannot be redacted to protect the identification of any possible victim and/or witnesses. I find that the Department has not met its burden of specificity in withholding the records in their entirety under G. L. c. 41, § 97D and G. L. c. 209(a), as they operate through Exemption (a). 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

Sgt. Detective John Boyle SPR20/1991 Page 4 October 29, 2020 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. 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. It is unclear from the Department’s October 15th response why the U-Visa certification records cannot be redacted to protect any privacy interests that may exist. I find the Department did not meet its burden of specificity in claiming Exemption (c) to withhold the records or information in their entirety. 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 material

Sgt. Detective John Boyle SPR20/1991 Page 5 October 29, 2020 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 on-going 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 claims that release of any data, information or records responsive to the request for U-Visa information and/or records, would have a chilling effect on future criminal investigations because individuals seeking U-Visa certification will be less likely to come forward. However, I find that the Department did not demonstrate how disclosure of the records, even in a redacted format, "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). The Department has not met its burden of specificity in withholding the records, in their entirety, under Exemption (f). 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); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, the Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under the Exemptions. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying records, categories of, or portions of records it withheld.

Sgt. Detective John Boyle SPR20/1991 Page 6 October 29, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. DeFraia 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: Daniel DeFraia Shawn A. Williams, Esq.