Julie A. Halaby v. Boston, City of - Police Department (SPR 20211162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2021 SPR21/1162 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Julie A. Halaby, Esq. of Halaby Law Group appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2020, Attorney Halaby requested “…the complete Internal Affairs Division (IAD) file for Case #IAD2020-0306, including but not limited to any and all investigation reports and bases for determining that the complaint should be classified as ‘unfounded’ as stated in the September 18, 2020 memorandum…” Prior Determination This appeal was the subject of a prior determination. See SPR21/0064 Determination of Supervisor of Public Records (January 26, 2021). In my January 26th determination, I found the City did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemption (c) of the Public Records Law. The City was ordered to provide a response to Attorney Halaby in a manner consistent with the order, the Public Records Law and its Regulations. The City provided said response on April 28, 2021. Unsatisfied with the City’s response, Attorney Halaby petitioned this office and SPR21/1162 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). 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. SPR21/1162 Page 2 May 21, 2021 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. The City’s April 28th response In its April 28, 2021 response, the City states that its “. . . prior written response clearly states that the investigation was against a civilian, and not a police officer. This file is not associated with an internal affairs investigation of a police officer. The investigation is solely related to an investigation against a civilian.” The City indicates, “[t]here is NO part of the file that is associated with the investigation of a complaint into a police officer.” 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 Prop. 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. SPR21/1162 Page 3 May 21, 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 the PETA decision, the Supreme Judicial Court (Court) found that “Exemption (c) requires a balancing test: 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 Court further explained that when performing the balancing test “[o]n one side of the scale, we have looked to three factors to assess 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... [o]n the other side of the scale, we have said that the public has a recognized interest in knowing whether public servants are carrying out their duties in a law- abiding and efficient manner.” PETA, 477 Mass. at 292. Based on the City’s response, I find it has not met its burden to withhold the record in its entirety under Exemption (c). Specifically, it is unclear how disclosure would result in personal embarrassment to an individual of normal sensibilities; and whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. at 291. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Attorney Halaby 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: Julie A. Halaby, Esq.