Robert Steele v. Northampton, City of - Police Department (SPR 20202366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2020 SPR20/2366 Jane Lawnicki Records Supervisor City of Northampton Police Department 29 Center Street Northampton, MA 02540 Dear Ms. Lawnicki: I have received the petition of Robert Steele appealing the response of the City of Northampton 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. Steele requested “all documents/reports that the Northampton Police department, Fire Department, Ambulance department and any other city department, has in their possession” regarding a certain incident that occurred on March 17, 2019. Previous Appeal This request has been the subject of a previous appeal. See SPR20/1983 Determination of the Supervisor of Records (October 29, 2020). In my October 29th determination, I found the Department had not met its burden to withhold a responsive video in its entirety pursuant to Exemption (c), and found it was unclear whether the Department possessed additional records regarding the “personnel narrative” entered in this case. The Department provided this response on November 9, 2020, stating that it is unable to provide a redacted version of the responsive video, and does not possess records reflecting the changes made to the personnel narrative. Unsatisfied with the Department’s response, Mr. Steele petitioned this office and this appeal, SPR20/2366, 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 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

Jane Lawnicki SPR20/2366 Page 2 December 14, 2020 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. Current Appeal In its October 5, 2020 response, the Department indicates that it is withholding “a copy of the interview recording for case 19-593-OF” pursuant to Exemption (c) of the Public Records Law. The Department states that the interview contains “medical content along with domestic violence content” that is exempt from disclosure. In its November 9th response, the Department states that it “cannot” produce segregable portions of the requested interview video. The Department explains that “in order to segregate portions of the video that are exempted by the Massachusetts Public Records Law, we would need software that this department does not possess. It is a task that this department cannot perform.” Although the Department’s responses demonstrate that the recorded interview contains medical information that is exempt from disclosure pursuant to Exemption (c), it remains unclear how this exemption permits withholding the record in its entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, despite the Department’s response, I find it has not met its burden in responding to this portion of the request. Modification Timestamps In his October 15th appeal petition, Mr. Steele states that he is “asking for [] the modified date stamps and corresponding information that was entered in Detective McKinney's personnel narrative, that spanned 16 months, from March 19, 2019 to July 14, 2020.” In a September 24, 2020 email, a member of the Department explained that “[t]he way our computer system is set up anytime we open up and type in our personnel narrative it is date stamped, indicating it is modified. It is not uncommon for a personnel narrative to have many modified dates, as we do not always finish a narrative documenting an investigation at one time.” In its October 5th response, the Department states that it is “unable to provide the reasons for the modifications” and explains that “[t]he software we use does not make note of the specifics of the modifications.” In its November 9th response, the Department states that it “can show the

Jane Lawnicki SPR20/2366 Page 3 December 14, 2020 date/time stamp of the modifications but the content of exactly what was modified cannot be shown” and indicates that it has confirmed this with the software provider. Where the Department has confirmed that it does not possess records reflecting the changes made to the requested personnel narrative, I find the Department has met its burden in responding to this portions of the request. See G. L. c. 66, § 10(a)(ii) (the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request). Conclusion Accordingly, the Department is ordered to provide a response to Mr. Steele, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Robert Steele