Greta Jochem v. Northampton, City of - Police Department (SPR 20211086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2021 SPR21/1086 Julie Gaudreau Principal Account Clerk Records Bureau Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Gaudreau: I have received the petition of Greta Jochem of the Daily Hampshire Gazette appealing the response of the Northampton 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, Ms. Jochem requested “complaints and final reports for all internal internal [sic] affair complaints filed with the Department from 2010 to 2016 and 2020.” The Department provided a response on April 16, 2021, indicating some records were being withheld pursuant to Exemptions (a) and (c). Unsatisfied with the Department’s response, Ms. Jochem petitioned this office and SPR21/1086 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

Julie Gaudreau SPR21/1086 Page 2 May 12, 2021 The Department’s April 16th response In its April 16th response, the Department indicates it “withheld three (3) Internal Affairs records.” The Department states “[o]ne report was withheld pursuant to Mass Public Records Law, Exemption (a) - The Statutory Exemption. The specific law preventing the release of this record is MGL Ch 41 Sec 97D[.]” The Department further states “[t]wo reports were withheld pursuant to Mass Public Records Law, Exemption (c) - The Privacy Exemption.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Department referenced the statute G. L. c. 41, § 97D, which provides in pertinent part: “All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality. . . .” G. L. c. 41, § 97D.

Julie Gaudreau SPR21/1086 Page 3 May 12, 2021 In a supplemental response sent to this office on May 11, 2021, the Department states “[t]wo of [the files] fall under both exemptions with exemption (a) prohibiting us from releasing it under G.L. c. 41, § 97D both involving allegations of domestic violence.” Based on the Department’s response, I find it has not met its burden of specificity to withhold the record(s) in their entirety under Exemption (a). Specifically, it is unclear how the record(s) relating to an internal affairs investigation falls within the type of records contemplated in G. L. c. 41 § 97D. Further, it is unclear which record(s) is/are being withheld from disclosure under Exemption (a). 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). 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 (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. 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. 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).

Julie Gaudreau SPR21/1086 Page 4 May 12, 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 April 16th response, the Department states, “[w]hile [it] understand[s] that this exemption does not apply to Police Officers, this department is withholding these records for the privacy of the officers' families. Releasing these two records would constitute an invasion of personal privacy and disclosure will result in an unreasonable, substantial or serious interference with the privacy of the officers’ immediate family. Redaction of the families names would not protect them from embarrassment or interference of their personal privacy.” In a supplemental response on May 11, 2021, the Department states “[t]he other record is being withheld under exemption c. In this case, the situation involves the officer’s family members including a child and also a former employee. Even with redaction of the names, the identities of the individuals would be revealed through the context of the report. This situation is of a highly personal nature and would cause embarrassment to the child, family member, and former employee if disclosed.” Based on the Department’s responses, I find it has not met its burden of specificity to withhold the record(s) in their entirety pursuant to Exemption (c). Given that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations, it is unclear how this exemption may be used to withhold the responsive record(s). Additionally, it is unclear which record(s) is/are being withheld from disclosure 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). 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. Conclusion Accordingly, the Department is ordered to provide Ms. Jochem 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.

Julie Gaudreau SPR21/1086 Page 5 May 12, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Greta Jochem, Daily Hampshire Gazette