Kevin Rothstein v. Boston, City of - Police Department (SPR 20210708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2021 SPR21/0708 Shawn Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Kevin Rothstein of WCVB-TV appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 2, 2021, Mr. Rothstein requested “[a] report, memo, finding or other document pertaining to the result(s) of an internal affairs investigation into 911 calls during the robbery and murder of [two identified individuals] on May 5, 2017 in Boston.” The Department provided an initial response on March 2, 2021, acknowledging receipt of the request. The Department provided an additional response on March 5, 2021, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Mr. Rothstein petitioned this office and this appeal, SPR21/0708, 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). 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. 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

Shawn Williams, Esq. SPR21/0708 Page 2 April 5, 2021 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 March 5th response In its March 5, 2021 response, the Department asserts “[a]ll records associated with internal investigation are withheld from disclosure as personnel records.” Citing Wakefield Teachers Ass’n v. School Committee of Wakefield, 431 Mass. 792 (2000); Worcester Telegram & Gazette Corp, v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003); Leeman v. Cote, Not Reported in N.E.2d (2006); and SPR Bulletin 03-04 Police Advisory - Internal Affairs and Personnel Records, Alan N. Cote, Supervisor of Records, the Department asserts that “[t]he record you seek consists of the file regarding an allegation filed against a non-uniformed civilian. As indicated [], the internal affairs process, for public records disclosure purposes, applies only to police officers. The courts clearly distinguished the findings in Worcester and Leeman from that in Wakefield.” The Department contends that “[w]hereas the courts and the Supervisor of Records have consistently found that disciplinary records of non-police officers are exempt from disclosure, and further whereas you seek disciplinary records of a civilian who is not a police officer, your request is denied.” Exemption (c) Exemption (c) permits the withholding of: 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester, 58 Mass. App. Ct. at 5. For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield, 431 Mass. at 798. The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

Shawn Williams, Esq. SPR21/0708 Page 3 April 5, 2021 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). 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. Based on the Department’s response, it is unclear what records the Department possesses that it withheld under Exemption (c). 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); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the type of record(s) it has in its possession that it withheld under Exemption (c). Further, it is uncertain how the records constitute disciplinary records, or how they can be withheld in their 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). The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Mr. Rothstein 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.

Shawn Williams, Esq. SPR21/0708 Page 4 April 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein