Joseph Viglione v. Medford, City of - Police Department (SPR 20211525)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1525 Lieutenant Joseph Casey Medford Police Department 100 Main Street Medford, MA 02155 Dear Lieutenant Casey: I have received the petition of Joseph Viglione appealing the response of the Medford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2021, Mr. Viglione requested “documents/police report(s) that include still photographs and video that [an identified individual] viewed of [an identified individual] at the Bank of America.” Previous appeal This request was the subject of a previous appeal. See SPR21/1257 Determination of the Supervisor of records (June 2, 2021). In my June 2nd determination, I found that the Department had not met its burden to withhold certain responsive records under Exemption (f). Accordingly, I ordered the Department to provide a supplemental response. The Department provided a response on June 16, 2021. Unsatisfied with the Department’s response, Mr. Viglione petitioned this office and this appeal, SPR21/1525, 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 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

Lieutenant Joseph Casey SPR21/1525 Page 2 July 1, 2021 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 June 16th response In its June 16, 2021 response, the Department states that the requested records, a video and photographs, pertain “. . . to an incident in which an entry/exit door of Bank of America ATM vestibule was damaged. The officers who investigated the incident determined that probable cause existed to charge the individual with wanton property damage and an application for a criminal complaint has been filed with Somerville District Court requesting a hearing with the Clerk Magistrate for a determination of probable cause to go forward with the criminal charges.” The Department notes that “. . . as the Clerk Magistrate’s probable cause hearing has not yet occurred, the case remains open pending the conclusion of the prosecutorial process and the records are subject to withholding under exemption (f) and (c) of the Public Records Law.” 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. 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.

Lieutenant Joseph Casey SPR21/1525 Page 3 July 1, 2021 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 posits that “. . . given the pendency of the probable cause hearing and the unresolved allegations at issue, the release of the information implicates the privacy interests of the individual at issue at this time. . . . In deciding whether there is a privacy interest in requested records and the weight to the video/photograph records requested here, are evidence of an alleged violation of criminal law, the case of which has been submitted to the Somerville District Court for a determination of probable cause, as such it is an ongoing criminal investigation awaiting a determination of probable cause for the allegation to go forward in the prosecutorial process. The clerks probable cause hearing (i.e. show cause hearing) is ‘presumptively private’, as the Supreme Judicial Court has held . . . [in] Bos. Globe Media Partners, LLC v. Chief Just. of Trial Ct., 483 Mass. 80, 94 (2019).” 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 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 289-290.

Lieutenant Joseph Casey SPR21/1525 Page 4 July 1, 2021 Under Exemption (f), the Department asserts that the “. . . video/photographs from the Bank of America at issue are evidence in the case, and release of the video and photographs at this time prior to the probable cause hearing would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The Departments cites Bougas. The Department asserts that the records “. . . are investigatory materials that warrant withholding at this time pursuant to exemption (f) as they were compiled out of the view of the public by law enforcement and the disclosure would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest as the probable cause hearing has not yet occurred; in that the investigation has been submitted to a probable cause determination, show cause clerks hearing at the district court level outside of public view as determined by the clerk of court.” I find the Department has met its burden to withhold responsive records under Exemption (f) at this time. Therefore, I will not opine on the Department’s Exemption (c) claim supporting non-disclosure of the requested records. Please note, a change in the status of the investigation will affect the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Viglione is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Viglione