Makalah Lacy v. Boston, City of - Police Department (SPR 20211527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29, 2021 SPR21/1527 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Makalah Lacy 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 March 19, 2021 Ms. Lacy requested, through her attorney at the time, Arielle Sharma, Esq., “all records related to Ms. Lacy and incidents originating at [a certain] Boston apartment complex [on five particular dates].” On March 23, 2021, Ms. Lacy further requested “all body camera footage by Boston police officers, 911 calls and BEMS or any other records for [certain] dates regrading incidents” with an identified individual. The City responded on April 15, 2021, providing a number of redacted records responsive to Ms. Lacy’s request and indicating “[t]he 911 calls that were shared with [Ms. Lacy] have been redacted according to MA Public Record Law.” Unsatisfied with the City’s response, Ms. Lacy appealed, and this case was opened as a result. Previous Appeals This request was the subject of a previous appeal. See SPR21/1012 Supervisor of Records Determination (May 5, 2021). In my May 5th determination, I ordered the City to cite specific exemptions of the Public Records Law and explain the applicability of such exemptions to the redactions. Subsequently, the City responded on June 14, 2021. Unsatisfied with the City’s response, Ms. Lacy appealed, and this case was opened as a result. For clarification, I note that part of Ms. Lacy’s original request to the City was the subject of a separate appeal. See SPR21/1150 Supervisor of Records Determination (May 14, 2021). That case concerned the recordings of body camera footage, whereas SPR21/1012 and this case concern the transcripts of 911 calls. 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. SPR21/1527 Page 2 June 29, 2021 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. Current Appeal In her appeal petition Ms. Lacy states that “there was no reasons given for the many redactions on the transcripts almost all of those lines besides a few were blank on why they were redacted. On top of that none of the 911 transcripts are dated.” She asks that the City provide “a reason for every single redactions [f]or each line that was redacted on all the transcripts.” The City’s April 15th and June 14th Responses In both its April 15, 2021 and June 14, 2021 responses, the City claimed to redact records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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); 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.

Shawn A. Williams, Esq. SPR21/1527 Page 3 June 29, 2021 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 info1mation 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). 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 original April 15, 2021 response, the City included a Redaction Log with each transcript. A number of entries in the Redaction Logs cite Exemption (c), while others are left blank. In its June 14, 2021 response, the City states that “the 911 calls that were shared with [Ms. Lacy], as explained previously, were redacted pursuant to M.G.L. c. 66 §10 and M.G.L. c. 4 §7(26)(c) which states that any material, medical information and information regarding specific witnesses/victims have been removed to protect their privacy.” The City’s June 14, 2021 response still does not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the City has not met its burden to show how the redacted portions fall within an exemption. It is also not clear from the City’s response what information relating to an individual was redacted from the responsive records. As a result, I find the City has still not satisfied its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. In addition, the transcripts provided to Ms. Lacy do not include the dates of the phone calls. It is unclear why the dates of the responsive records were either redacted or not provided. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Lacy with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Shawn A. Williams, Esq. SPR21/1527 Page 4 June 29, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Makalah Lacy