James R. McMahon, III v. Sandwich, Town of - Police Department (SPR 20210815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0815 Marya Caristi Administrative Assistant Sandwich Police Department 255 Cotuit Road Sandwich, MA 02563 Dear Ms. Caristi: I have received the petition of Attorney James R. McMahon, III, appealing the response of the Sandwich 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 8, 2021, Attorney McMahon requested “…unredacted, and unrevised copies of any police investigative reports, criminal process, motor vehicle citations, witness statements, photographs, notes, and any other documents associated in any way with...” an identified individual and incident. The Department provided a response on March 23, 2021, which included responsive records redacted pursuant to Exemptions (c) and (f); as well as denying access to a responsive record in its entirety pursuant to Exemption (f). G. L. c. 4, § 7(26) (c), (f). Unsatisfied with the Department’s response, Attorney McMahon petitioned this office and this appeal, SPR21/0815, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney McMahon purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, 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

Marya Caristi SPR21/0815 Page 2 April 14, 2021 this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Attorney McMahon may wish to consider another means of seeking to obtain any existing responsive records. 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 March 23rd response In its March 23rd response, the Department states “…request for reports 15-534, 17-183- OF and 20-637-OF, those records are enclosed but have been redacted in accordance with Massachusetts Public Records Law Exemption (c)… [a]dditionally we have redacted these reports under Exemption (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).

Marya Caristi SPR21/0815 Page 3 April 14, 2021 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 info1mation 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). 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. Under Exemption (c) the Department posits, “[t]he report has references to witness and contact Information with personally Identifiable Information (Pl/) of Individuals who were Interviewed as a result of the Incident. Disclosing this Information would result in an unwanted invasion of their privacy and would undermine the trust and confidence of future witness for this department.” 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

Marya Caristi SPR21/0815 Page 4 April 14, 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. Under Exemption (f), the Department posits, “an entity can withhold an entire record ‘[i]f the requester is familiar with the individual who were involved in the incident and noted in the report so it would not be possible to redact the report in a manner as to avoid indirect identification of the voluntary witness.’ However, rather than deny the request in full, this department has deemed it appropriate and the best interest of the public good to provide you with redacted reports.” The Department further posits “[i]n regard to your request for report 20-638-0F. That request is being denied under Exemption (f)… [i]n this instance, it is not possible to redact the report in a manner as to avoid indirect identification of the voluntary witness and complainant. In addition, that is still open and as such is considered part of an ongoing investigation.” In his appeal, Attorney McMahon contends “[t]hese document are being used by the Sandwich Police Department to refuse renewal of a License to Carry a Firearms… [i]t is most assuredly that the Sandwich Police Department will use these unredacted documents against [an identified individual] at the Petition for Judicial Review hearing. In other words, the Sandwich Police Department will be producing unredacted copies of these Incident Reports…during the hearing, thus making them evidence, and thus opening them to public examination. We need these unredacted Incident Reports to prepare for this hearing, and subpoena those witnesses contained therein; and to see the unredacted portions of those Incident Report s in order to defend against their content.” In camera inspection In order to facilitate a determination as to the applicability of the Department's claims, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Marya Caristi SPR21/0815 Page 5 April 14, 2021 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: James R. McMahon, III, Esq.