Timothy R. Callinan v. Revere, City of - Police Department (SPR 20211645)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2021 SPR21/1645 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 22, 2021, Attorney Callinan requested the following: 1. “All records of the above-described police incident on 04/14/2021, which occurred at approximately 12:00 P.M., including, but not limited to: a. The complete IMC record of the Incident/Arrest Report, including the journal entry and all attachments to said report; b. Any and all reports, including accident reports, by Chief… regarding the above described event; c. All recordings of the radio transmissions associated with the above- described event; d. A copy of any Massachusetts Uniformed Citation issued to [a named individual] associated with the above-described event; 2. A copy of the Revere Police Department’s Use of Force Policy; and 3. A copy of any and all Revere Police Department policies regarding pursuits of motor vehicles and/or pedestrians.” Previous appeal This request was the subject of a previous appeal. See SPR21/1204 Determination of the Supervisor of Records (May 24, 2021). The Department provided a response on May 19, 2021. Unsatisfied with the Department’s response, Attorney Callinan petitioned this office and this appeal, SPR21/1645, was opened as a result. 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 SPR21/1645 Page 2 July 20, 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. 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 May 19th Response On May 19, 2021, the Department cited Exemptions (a), (b), (c), (f) and (n) in responding to Attorney Callinan records requests pertaining to requests #1 and #2 listed above. Attorney Callinan appealed the response explaining, “RPD has not provided me with a satisfactory response to my attached requests, specifically requests #1 and #3.” Attorney Callinan mentioned in his appeal, “I have just previously sent an email where I misstated that I was unsatisfied with response #2. I should have stated #3.” Based on this information, Attorney Callinan’s appeal is regarding the Department’s response to records requests #1 and #3 listed above. The Department’s July 12th Supplemental Response On July 12, 2021, the Department provided a supplemental response to Attorney Callinan’s request concerning request #3 listed above. Based on the Department’s July 12th supplemental response, this appeal will pertain to the Department’s response to request #1 listed above. Attorney Callinan may appeal the substantive nature of the Department’s July 12th supplemental response concerning request #3 within ninety (90) days. See 950 C.M.R. 32.08(1). 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

Captain Michelle Mangino, RAO SPR21/1645 Page 3 July 20, 2021 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 Attorney 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. CORI The current definition of criminal offender record information (CORI) is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration.

Captain Michelle Mangino, RAO SPR21/1645 Page 4 July 20, 2021 G. L. c. 6, § 167. Attorney Callinan requested the complete IMC record of the Incident/Arrest Report. In its response, the Department asserted, “[y]ou are seeking a copy of an arrest report which contains Criminal Offender Record Information (C.O.R.I.). A record that is recorded as a result of the initiation of criminal proceedings or other consequent proceeding may be withheld under the C.O.R.I. statute.” Regarding the request for all reports by the Chief, the Department stated in its response, “[y]ou are seeking a copy of an accident report which is contains Criminal Offender Record Information (C.O.R.I.). A record that is recorded as a result of the initiation of criminal proceedings or other consequent proceeding may be withheld under the C.O.R.I. statute.” The Department has not met its burden to explain how this information falls within the definition of CORI. Specifically, it is unclear how the “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above in G. L. c. 6, § 167. The Department must address this issue. 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) ----------------------------

Captain Michelle Mangino, RAO SPR21/1645 Page 5 July 20, 2021 (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 19th response, the Department cited Exemption (c) relating to Attorney Callinan’s request for the complete Incident/Arrest Report. The Department stated, “[y]ou are seeking a copy of an arrest report which contains but is not limited to the following: CORI, names of involved parties, social security numbers of involved parties, addresses of involved parties, phone numbers of involved parties, statements and interviews of involved parties, medical information of involved parties. I have determined that this information constitutes an ‘intimate detail’ and that the privacy interest associated with disclosure outweighs the public interest in disclosure.” The Department also cited Exemption (c) to withhold the reports by the Chief. The Department claimed, “[y]ou are seeking a copy of an accident report which contains but is not limited to the following: CORI, names of involved parties, driver’s license numbers of involved parties, addresses of involved parties, statements of involved parties, medical information of involved parties. I have determined that this information constitutes an ‘intimate detail’ and that the privacy interest associated with disclosure outweighs the public interest in disclosure.” 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.

Captain Michelle Mangino, RAO SPR21/1645 Page 6 July 20, 2021 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. 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 19th response, the Department claimed Exemption (f). Regarding the request for the complete IMC record of the Incident/Arrest Report, the Department explained, “[r]eleasing an arrest report will likely prejudice investigative efforts by law enforcement. Also, any information released relating to this ongoing investigation could potentially alert suspects to the activities of investigative officials. I believe withholding confidential investigative techniques from disclosure and providing an assurance of confidentiality to private citizens is proper and necessary. Private citizens should be able to speak openly about matters under investigation without fearing they will be identified. Further, the arrest report is investigatory

Captain Michelle Mangino, RAO SPR21/1645 Page 7 July 20, 2021 material because it was created by law enforcement officials to document the nature and course of crime(s) committed.” With respect to the request for accident reports by the Chief, the Department explained, “[r]eleasing an accident report which is part of the investigation will likely prejudice investigative efforts by law enforcement. Also, any information released relating to this ongoing investigation could potentially alert suspects to the activities of investigative officials. I believe withholding confidential investigative techniques from disclosure and providing an assurance of confidentiality to private citizens is proper and necessary. Private citizens should be able to speak openly about matters under investigation without fearing they will be identified. Further, the accident report is investigatory material because it was created by law enforcement officials and it details information related to location of a crime, evidence recovered, witnesses, etc.” To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, based on the Department’s May 19th response, it remains unclear how all of the information contained in the responsive records falls under Exemption (f). The Department must clarify this. 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.