Daniel DeFraia v. Boston, City of - Police Department (SPR 20211087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2021 SPR21/1087 Shawn A. Williams, Esq. Director of Public Records/Records Access Officer City of Boston City Hall One City Hall Square Boston, MA 02120 Dear Attorney Williams: I have received the petition of Daniel DeFraia appealing the response of the City of Boston (City) Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. DeFraia requested: 1. Data showing how many U-Visas the [Department] has provided and denied since 2000. The U-Visa gives temporary status to immigrant crime victims who are helpful in a law enforcement investigation or prosecution; 2. Copies of any policies or procedures that outline the [Department’s] process in reviewing U-Visa certification requests; 3. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records), approved by the [Department] in 2018; and 4. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records), denied by the [Department] in 2018. Prior appeals This request was the subject of previous determinations. See SPR19/2468; SPR20/1991 and SPR21/0081 Determinations of the Supervisor of Records (December 19, 2019; October 29, 2020 and January 28, 2021). The Department claimed Exemptions (a), (c) and (f) of the Public Records Law. Unsatisfied with the Department’s January 8, 2021 response, Mr. DeFraia petitioned the Supervisor, and appeal SPR21/0081 was opened. In his January 8th petition, Mr. DeFraia asserts, “[t]he [Department] certifies or denies [the] applications not the [V]isa itself, and therefore must 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 A. Williams, Esq. SPR21/1087 Page 2 May 12, 2021 retain and have access to information and/or records concerning that process. The fact that the [Department] does not provide those [V]isas itself is irrelevant to my request, including the aggregate data I requested.” As a result, in my January 28th determination, I ordered the Department to provide this office with an un-redacted copy of the records for in camera inspection. The Department instead provided a further response. In its April 27, 2021 response pertaining to Mr. DeFraia’s request number three, the Department asserts, “[i]t is not possible to redact the responsive records in a manner that would protect the privacy of specifically identified individuals who are not authorized to be in the United States. As such, no records will be provided. The disclosure of which would constitute an unwarranted violation of privacy. G. L. c. 4, § 7(26)(c). Information that would identify persons seeking U-Visa certification from the federal government constitutes intimate details of a highly personal nature regarding the status of such persons. This information is not readily available from another source, nor does the public interest in disclosure outweigh this privacy interest.” 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. 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).

Shawn A. Williams, Esq. SPR21/1087 Page 3 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. I find that the Department’s April 27th response does not sufficiently demonstrate how the records may be withheld in their entirety under Exemption (c). Therefore, the Department has not met its burden to withhold the records, in their entirety, under Exemption (c). In camera inspection In order to facilitate a determination as to the applicability of the Department’s April 27, 2021 current claim that the U-Visa certification records in their possession may be withheld, in their entirety, under Exemption (c), the Department must provide the Supervisor with an un- redacted copy of these records for an in camera inspection. 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 the Supervisor that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. The Supervisor and the Public Records Division are not the custodians of records examined in camera; therefore, any request made to the Supervisor or the Public Records Division for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). The Supervisor has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to the Supervisor upon a promise of confidentiality. The Supervisor 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. To accompany the records, the Department may provide the Supervisor with a further explanation of its position regarding the Department’s denial to provide the responsive records and the applicability of the exemption claim. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be available to the public.

Shawn A. Williams, Esq. SPR21/1087 Page 4 May 12, 2021 Conclusion Accordingly, the Department is ordered to provide this office with a representative sample of the responsive records without delay. Failure to comply with this administrative order may result in referral to the Office of the Attorney General for enforcement. Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel DeFraia