Timothy R. Callinan v. Revere, City of - Police Department (SPR 20211475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2021 SPR21/1475 Captain Michelle Mangino Records Access Officer (RAO) Bureau of Administration, Commander Revere Police Department 400 Revere Beach Blvd Revere, MA 02151 Dear Captain Mangino: I have received the petition of Timothy Callinan, Esq. appealing the response of the Revere 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 2, 2021, Attorney Callinan requested the following records: 1. Copies of any and all emails, text messages, written messages, and other writings to, from, or between Mayor Brian Arrigo and Police Chief David Callahan concerning Officer Rick Griffin from July 15, 2020 to the present; 2. Copies of any and all emails, text messages, written messages, and other writings to, from, or between Mayor Brian Arrigo and Police Chief David Callahan containing the name “Griffin” regardless of the first name, position, or occupation from July 15, 2020 to the present; 3. Copies of any and all emails, text messages, written messages, and other writings to, from, or between Police Chief David Callahan and Lt. Maria Lavita containing the name “Griffin” regardless of the first name, position, or occupation from July 15, 2020 to the present; 4. All discipline of sworn officers within the Revere Police Department in the past five years; 5. All complaints received against sworn officers within the past five years, all internal affairs investigations within the past five years, and the corresponding reports, narratives, and attachments to the internal affairs investigations for the past five years; 6. All allegations against Dave Callahan, including any investigations and settlements, from the past five years; 7. All Internal Affairs Investigations based on allegations against David Callahan, including the reports, narratives, and attachments, in the past 5 years; 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

Captain Michelle Mangino, RAO SPR21/1475 Page 2 June 25, 2021 8. All settlements or agreements between the City of Revere and Marc Birritteri in the past five years; 9. All officers placed on paid administrative leave for the past five years, including the reasons therefore; 10. All results, established lists, or any other documents depicting the scoring ranking or results of all assessment center style examinations conducted by Ryan Strategies for the position of Chief of Police in the past six years, and all corresponding instructions issued to the examinees for said assessment center examinations; 11. All political donations made by David Callahan and Rhonda Callahan to Brian Arrigo since 2015; 12. All political donations made by James Guido, Lillian Guido, and Nanci Guido to Brian Arrigo since 2015; 13. All political donations made by Maria Lavita to Brian Arrigo since 2015; 14. All political donations made by Douglas Zingali to Brian Arrigo since 2015; 15. All political donations made by Paul Cheever to Brian Arrigo since 2015. Previous appeal This request was the subject of a previous appeal. See SPR21/0994 Determination of the Supervisor of Records (May 4, 2021). The Department provided a response on May 25, 2021. Unsatisfied with the Department’s response, Attorney Callinan petitioned this office and this appeal, SPR21/1475, 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. 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.

Captain Michelle Mangino, RAO SPR21/1475 Page 3 June 25, 2021 The Department’s May 25th Response In its May 25, 2021 response, the Department referred to requests 1, 2, and 10 listed above and cited Exemptions (c), (f), and (l) along with attorney-client privilege for the withholding of requested records. 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 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). 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 May 25th response, the Department cited Exemption (c) for withholding email records regarding requests #1 and #2. Attorney Callinan requested copies of any and all emails, text messages, written messages, and other writings to, from, or between the Mayor and Police

Captain Michelle Mangino, RAO SPR21/1475 Page 4 June 25, 2021 Chief concerning an identified Officer from July 15, 2020 to the present. The Department explained that the information “may constitute an unwarranted invasion of personal privacy.” Also in its May 25th response, the Department cited Exemption (c) regarding request #10. The request asked for all results, established lists, or any other documents depicting the scoring ranking or results of all assessment center style examinations conducted by Ryan Strategies for the position of Chief of Police in the past six years, and all corresponding instructions issued to the examinees for said assessment center examinations. The Department explained the “[i]nformation contained in the assessment center process may constitute an unwarranted invasion of personal privacy if disseminated. The names of the officers who participated in the assessment center are of common knowledge to the members of the Revere Police and likely bordering departments, which is similar to being specifically named individual. If the data were released it may result in personal embarrassment and may contain intimate details of a highly personal nature.” Unwarranted Invasion of Personal Privacy Based on the Department’s response, it is unclear how this information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. As noted above, Exemption (c) does not protect all data relating to specifically named individuals. It is unclear from the Department’s response (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 PETA 477 Mass. at 292. Further, the Department must explain whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 291. It is also unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is inextricably intertwined with exempt data that records cannot be segregated. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this matter. 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).

Captain Michelle Mangino, RAO SPR21/1475 Page 5 June 25, 2021 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 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 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 Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. 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. In its May 25th response to requests #1 and #2, the Department claims that Exemption (f) “provides custodians a basis for withholding: 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. Disseminating this information could possibly deter victims and or other involved parties from making a future complaint or assisting law enforcement.” The Department further explain exemption (f) “allows law enforcement to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation.” Based on the Department’s response, it is unclear how the records can be withheld in their entirety. The Department has not established why the complaint could not be redacted to preserve confidentiality. It is also unclear in the Department’s response how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). The Department must clarify this matter. Exemption (l) Exemption (l) permits the withholding of records that are:

Captain Michelle Mangino, RAO SPR21/1475 Page 6 June 25, 2021 questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). In its May 25th response, the Department cited Exemption (1) regarding request #10. The Department stated the “request is being denied based on Exemption (l) which provides a basis for withholding from disclosure: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument.” The Department explained the “request is for assessment center results, lists or any other documents depicting the scoring ranking or results conducted by Ryan Strategies for Chief of Police. The questions and answers provided by each person undergoing the assessment test along with the recordings (audio and video) are not a public record and are exempt from disclosure under this exemption. The questions and answers, scoring keys and sheets and other materials used to develop, administer or score the assessment instrument will be used for future assessment instruments.” The Department also stated that “releasing these documents may give an unfair advantage to police officers if this information were disseminated.” Based on the Department’s response, it is unclear how “documents depicting the scoring ranking or results conducted by Ryan Strategies for Chief of Police” constitute questions and answers, scoring keys and sheets or other materials used to develop, administer or score an exam or assessment. It is also unclear how the records can be withheld in their entirety. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records

Captain Michelle Mangino, RAO SPR21/1475 Page 7 June 25, 2021 custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its May 25th response, the Department claimed attorney-client privilege for the withholding of documents in requests #1 and #2. The withheld documents mentioned are email exchanges between the City of Revere’s legal counsel and the City of Revere and Department. The Department is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. The Department must provide a privilege log and further explain how the email communication constitutes attorney-client privileged communication. Records in existence 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). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In his appeal, Attorney Callinan states “[r]egarding Requests 3, 4, 5, 6, 7, 8, and 9, [the Department] has intentionally not responded at all. It appears that there is no valid reason for the denial of the public records.” In light of the issues raised by Attorney Callinan regarding the existence of additional responsive records, I find it is unclear whether responsive records exist. The Department must clarify this matter. This office continues to encourage Attorney Callinan and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably).

Captain Michelle Mangino, RAO SPR21/1475 Page 8 June 25, 2021 Conclusion Accordingly, the Department is ordered to provide Attorney Callinan 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: Timothy R. Callinan, Esq. Matthew Buckley, Esq.