Andrew Quemere v. Chicopee, City of - Police Department (SPR 20202112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2112 Officer Louis F. Vezina Jr. Records Access Officer Chicopee Police Department 110 Church Street Chicopee, MA 01020 Dear Officer Vezina Jr.: I have received the petition of Andrew Quemere appealing the response of the Chicopee Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 24, 2020, Mr. Quemere requested the following categories of requests: [1] The police department’s current use-of-force policies [2] A blank copy of each form used to report use-of-force incidents (if the form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots) [3] All division-wide and department-wide use-of-force reports/audits for the years 2010 to the present (by division-wide and department-wide, I mean reports/audits that examine use of force by an entire division or the entire department, not reports/audits about a specific use-of-force incident) [4] All data on the number of use-of-force incidents for the years 2010 to the present [5] All data on the total number of use-of-force incidents involving each Department employee[.] Previous appeal; reconsideration This request was the subject of a previous appeal and subsequent reconsideration. See SPR20/1644 Determination of the Supervisor of Records (September 24, 2020, October 15, 2020). In my October 15th determination, I directed the Department to provide records responsive to request 5, to the extent that they exist in compliance with the Public Records Law. Subsequently, the Department provided a response on October 29, 2020. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/2112, was 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

Officer Louis F. Vezina Jr. SPR20/2112 Page 2 November 9, 2020 opened as a result. While this appeal was pending, the Department provided a supplemental response dated November 2, 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); 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 Department’s October 29th and November 2nd responses In its October 29, 2020 response, the Department asserts that “. . . the record of the names of the police officers have been withheld to protect the name of each employee as i[t] contains intimate details of a highly personal nature and may result in an unwarranted invasion of privacy pursuant to M.G.L. c. 4 §7(26)(c).” The Department explains that “. . . while the information does not clearly fall into one of the specific categories[,] [marital status, paternity, substance abuse, government assistance, family disputes, and reputation,] the information may constitute an unwarranted invasion of personal privacy.” The Department posits that “[w]hile there is certainly a public interest to know how many use of force incidents have occurred during the time frame you have provided for your request, there is no public interest in knowing what officer had a use of force incident. Specifically, revealing the names of officers, may place the officer or their family members in imminent danger given the current ‘anti-police climate’ in our country. For example if names are revealed, the general public could use other resources to find out officers and their family members home addresses and telephone numbers and target them for the purposes of embarrassment, humiliation, intimidation, threats of bodily harm or damage to personal property, or actual bodily harm or damage to personal property.” The Department further explains that although the public needs to obtain data and information in order to meaningfully engage in discussions regarding police use of force, “[t]his,

Officer Louis F. Vezina Jr. SPR20/2112 Page 3 November 9, 2020 on the contrary offers very little value in the national conversation, and unreasonably create[s] high risk for the officers involved of reprisal, harassment, intimidation, and the like. . . . Likewise, exemption (o) protects the dissemination of information related to an officer’s home addresses and exemption (p) likewise protects the same for such officer’s family members. Considering all the above, it is clear that the balance afforded by exemption (c) weighs in favor of protecting this.” In its November 2, 2020 supplemental response, the Department contends that “Mr. Quemere’s argument that the data should be released because the names of the officers are already public knowledge, does not hold credence. The information on the database doesn’t connect to each officer’s use of force incidents, only name and salary. The information packaged together (name and # of use of force incidents) is what the [Department] is concerned about. . . . By releasing the officers names along with the types of Use of Force and the number of times that an officer had to use force, would put not only the officers safety but the safety of their family at grave risk of serious bodily injury or possible death because someone (not knowing the situation) didn’t like the fact the an officer use force and decided to retaliate against the officer.” 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). Second clause of Exemption (c) – privacy 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). 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).

Officer Louis F. Vezina Jr. SPR20/2112 Page 4 November 9, 2020 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 how the public interest in release of information that relates to the officers’ performance of their duties is outweighed by any privacy right that may exist. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Andrew Quemere