Maximo Sterling v. New Bedford, City of - Police Department (SPR 20210200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12, 2021 SPR21/0200 Officer Michael Boswell Records Access Officer New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Maximo Sterling appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On January 5, 2021, Mr. Sterling requested, “… the 911 tapes and dispatch log for some 911 calls made on 12/19/2020 at around midnight [for an] … emergency [at a named location] … in New Bedford and [for a named individual].” Unsatisfied with the Department’s response, Mr. Sterling petitioned this office, and SPR21/0200 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 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). 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. 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 Michael Boswell SPR21/0200 Page 2 February 12, 2021 The Department’s January 20th Response In its January 20th response, the Department declined to produce the records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26) (c), (f). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. 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 Med. Examiner, 404 Mass. 132, 135 (1987). Analysis under 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. 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). When analyzing a privacy claim, there is 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 response, the Department states, “… the audio recordings of calls to 911 made by a reporting party [sought] medical assistance [and] … describes the patient’s medical conditions(s) and provides personally identifiable information…” The Department posits that, “[t]he Department does not have the ability to manipulate the audio file in a way that would separate and delete the

Officer Michael Boswell SPR21/0200 Page 3 February 12, 2021 portion of the audio recording that contains the patient’s medical information from the remainder of the audio.” Based on the Department's claim, to the extent that the records contain medical information, the Department may permissibly withhold such portions from disclosure. However, the Department has not demonstrated that the records, in their entirety, are intimate details of a highly personal nature. Particularly, it is unclear how dates of birth, statements from the dispatcher within the 911 audio recording, date, time of dispatch, time arrived or time closed, are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. I find the Department has not met its burden of demonstrating how the 911 recordings can be withheld in its 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 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). 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if

Officer Michael Boswell SPR21/0200 Page 4 February 12, 2021 disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Department states, “… [t]he Division of Professional Standards is actively investigating the Department’s response to the medical call involving these records. The requested 911 dispatch recordings and log are part of the investigative file and their release before the investigation is complete is likely to frustrate the Department’s ability to investigate the case thoroughly and effectively.” Although the Department states that that there is an ongoing investigation, it is it is unclear how the release of the records would compromise the ongoing investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). It is additionally uncertain why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. 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). Conclusion The Department is ordered to provide a response to Mr. Sterling 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, ~ ·I- - - ,, - .· Rebecca S. Murray Supervisor of Records cc: Maximo Sterling