Kyle G. Christensen v. Pittsfield, City of - Police Department (SPR 20211436)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2021 SPR21/1436 Kerri Striebel Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Kyle Christensen, Esq. on behalf of Gregory Howard, Esq., both of Donovan, O’Connor & Dodig, LLP, appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 21, 2021, Attorney Howard requested “. . . any and all police reports, notes, fire scene photography documentation, interviews, videos or dispatch logs concerning [a specified] incident.” The Department provided responses on April 29, 2021 and May 24, 2021. The Department’s May 24th response included responsive records in redacted form pursuant to Exemptions (a), (c), (e), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (e), (f). Unsatisfied with the Department’s response, Attorney Christensen petitioned this office and this appeal, SPR21/1436, was opened as a result. It appears Attorney Christensen is not appealing the Department’s Exemption (e) claim. 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 Howard’s purpose in making the request has no bearing on the public status of 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 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

Kerri Striebel SPR21/1436 Page 2 June 21, 2021 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 April 29th and May 24th responses In its April 29, 2021 response, the Department indicated that it intends to redact and withhold certain information under Exemptions (a), (c), (e) and (f). On May 24, 2021, the Department provided certain responsive records in redacted form. 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 Att’y 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.

Kerri Striebel SPR21/1436 Page 3 June 21, 2021 Under Exemption (a), the Department states “[victim information]: G.L. c. 66, section 10B advises that the home address, telephone number, personal email address or place [of] employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records.” Based on the Department’s response, it is unclear what information the Department redacted or withheld pursuant to the cited statute. Also, Attorney Christensen states “[a]s no charges have been filed, no crimes have been adjudicated, and, to the best of our understanding, there is no allegation of domestic violence in connection with the associated investigation, this exemption is inapplicable.” In light of this claim, it is unclear how the cited statute permits the Department to redact information from the responsive records. 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). 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).

Kerri Striebel SPR21/1436 Page 4 June 21, 2021 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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. Under Exemption (c), the Department states “. . . this record contains intimate details of a highly personal nature and medical information relating to a specifically named individual. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy.” Based on the Department’s response, to the extent that the records contain medical information regarding an identifiable individual, the Department may permissibly withhold such information from disclosure. However, it is unclear what other information the Department redacted from the records. Specifically, it is uncertain how this information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department 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. 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 v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity

Kerri Striebel SPR21/1436 Page 5 June 21, 2021 of voluntary witnesses. Antell v. Att’y 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 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 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department states “[t]he identifying witness information is being withheld under the law.” In his appeal petition, Attorney Christensen states, “[the Department] asserts that G.L. c. 4, § 7(26)(f) exempts from disclosure ‘information which directly or indirectly identifies witnesses.’. . . The Department asserts this protection applies without any further explanation and redacted ‘identifying witness information,’ including witness names, some of whom were performing their official job duties as members of the Pittsfield Fire Department. . . .” To the extent that the Department redacted the identity of a voluntary witness, I find the Department may permissibly withhold this information from disclosure under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). However, if the Department withheld the identities of witnesses who are Department employees performing their official duties, it is unclear how the Department can redact their identities as voluntary witnesses under Exemption (f). The Department must clarify this matter. Additional records In his appeal petition, Attorney Christensen states “[w]hile [the Department] produced some responsive and redacted records on May 24, 2021, it failed to identify those records which were withheld. . . .” Attorney Christensen further states, “[d]espite our repeated requests for fire scene photography, we have been denied access to same. None of [the Department’s] correspondences address fire scene photography or offer any claimed exemption to justify its decision to withhold it. . . . We believe [the Department] is in possession of videos depicting the fire obtained from a neighbor’s surveillance camera and a bystander’s mobile phone. We

Kerri Striebel SPR21/1436 Page 6 June 21, 2021 believe [the Department] is in possession of photographs taken by a civilian fire scene photographer and the [Department] Detective Bureau. [The Department] declined to answer our request for fire photography and therefore we do not know what, if any, other materials are being withheld that would be responsive to this request. . . .” In light of the above, it is unclear if the Department possesses additional records responsive to this request or withheld any responsive records from disclosure. Specifically, the Department must clarify whether it possesses any videos or photographs regarding the incident. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Department is ordered to provide Attorney Christensen 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kyle Christensen, Esq.