Anthony Barry v. Massachusetts Department of State Police (SPR 20210417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2021 SPR21/0417 Jennifer Staples, Esq. Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Anthony Barry appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In a request dated January 4, 2021, Mr. Barry requested all records in the Department’s possession for two identified individuals, including arrest reports. Previous appeal This request was the subject of a previous appeal. See SPR21/0125 Determination of the Supervisor of Records (February 3, 2021). In my February 3rd determination, I found the Department had not provided a response to the request. The Department was ordered to provide Mr. Barry with a response to his request, in a manner consistent with the order and the Public Records Law and its Regulations. The Department provided said response on February 4, 2021, denying access to responsive records pursuant to Exemptions (c) and (f). Unsatisfied with the Department’s response, Mr. Barry petitioned this office, and SPR21/0417 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 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

Jennifer Staples, Esq. SPR21/0417 Page 2 March 4, 2021 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 February 4th response In its February 4th response, the Department indicates it “has identified four potentially responsive records in its possession, custody, or control. However, the Department denies your request…” citing Exemptions (c) and (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). 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 exemption 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 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).

Jennifer Staples, Esq. SPR21/0417 Page 3 March 4, 2021 This exemption 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 response, the Department indicates “…two potentially responsive documents in the Department's possession, custody, or control, reports 1999-044-0086 and 2003-110-0035…are exempt from disclosure pursuant to M.G.L. c. 4, §7 cl. 26(c) (privacy clause).” The Department posits “[w]ith respect to your request and in light of the circumstances detailed in the reports you seek, the Department takes the position that these reports implicate a matter of an intimate detail of a highly personal and private nature, i.e., arrests of private citizens. The Department asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such sensitive personal matters.” Based on the Department’s response, I find it has not met its burden of specificity in claiming Exemption (c) to withhold the arrest reports in their entirety. The Department has not sufficiently explained how disclosure of the records would result in personal embarrassment to an individual of normal sensibilities. It is also uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Additionally, the Department’s response fails to address the balancing test outlined in PETA. Id. Please be advised any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).The Department must clarify these matters. 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, 371 Mass at 62. 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

Jennifer Staples, Esq. SPR21/0417 Page 4 March 4, 2021 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 289-290. In its response, the Department indicates “[t]wo of the potentially responsive documents in the Department's possession, custody, or control, case report 2019-132-739 and report 2020- 0Al-007788, relate to an active, ongoing prosecution. Accordingly, these documents are exempt pursuant to M.G.L. c. 4, §7, cl. 26 (f).” The Department posits “[t]hese two records relate to an identifiable person currently being prosecuted. The Department asserts that providing these materials to you would prematurely disclose the Commonwealth's case prior to trial, which would prejudice the possibility of effective law enforcement. It is not in the public's interest to release this information, as such release could potentially taint any potential jury pool.” Based on the Department’s response, where the requested record is part of an ongoing investigation and prosecution, I find the Department has met its burden to withhold the report, at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation or prosecution could impact the applicability of Exemption (f) to this record. Conclusion Accordingly, the Department is ordered to provide Mr. Barry with a response to the request, provided 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: Anthony Barry