Kathleen Turner v. Lowell, City of - Police Department (SPR 20212406)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2406 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Kathleen Turner appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2021, Ms. Turner requested “all documentation and police reports pertaining to the dates of December 18th, 2020; December 19th, 2020; and December 20th, 2020.” Previous appeals This request was the subject of previous appeals. See SPR21/0933 Determination of the Supervisor of Records (April 13, 2021); SPR21/0997 Determination of the Supervisor of Records (May 17, 2021); SPR21/1276 Determination of the Supervisor of Records (June 7, 2021); SPR21/1899 Determination of the Supervisor of Records (August 13, 2021). The Department provided a response on August 26, 2021. Unsatisfied with the Department’s response, Ms. Turner petitioned this office and this appeal, SPR21/2406, 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 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

Jackie Cook SPR21/2406 Page 2 September 27, 2021 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 August 26th Response In its August 26, 2021 response, the Department cited Exemptions (a), (c), and (o) for the redactions of documents provided to Ms. Turner. 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. The cited statute states in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their

Jackie Cook SPR21/2406 Page 3 September 27, 2021 confidentiality . . . G. L. c. 41, § 97D. 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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).

Jackie Cook SPR21/2406 Page 4 September 27, 2021 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. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l 50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). In the Department’s June 21st response it explained, “[t]he initial report pertains, in its entirety, to a domestic violence incident. It speaks only, and specifically, to a domestic violence incident and lays out the probable cause for charges related to that incident. Numerous portions of the three supplemental reports pertain to the same domestic violence incident.” The Department further explained, “[t]he first supplemental report, supplement 001, begins by summarizing the initial response to the domestic incident. It next references the second response to the domestic incident then documents the officer’s actions from the point of searching for the suspect onward. The second supplemental report, supplement 002, references the domestic violence incident in the first two paragraphs then describes river rescue efforts. The third supplemental report, supplement 003, is an investigator’s report and summarizes the domestic violence incident as well as the events occurring after the domestic violence incident. The report documents follow-up investigatory efforts related to the search for [identified individual] but, also, vey specifically, follow-up investigatory efforts related to the domestic violence incident.” In addition, the Department stated, “the City had no obligation to release any part of the reports. However, due to the heightened public interest, and in the spirit of transparency, the City released redacted versions of the reports. The City has redacted any piece of information that may directly, indirectly, or by necessary implication disclose the identity of the victim. Including the following: victim and witness names, victim and witness addresses, names of persons related to the victim, and information about the victim’s vehicle or other information about the victim,

Jackie Cook SPR21/2406 Page 5 September 27, 2021 as well as, police car numbers, names, and sector locations that cover or assist in the area of the victim’s residence. While certain information redacted here may typically be released, this is not a typical report or situation. First, the redacted information, coupled with other innocuous facts within the report or information readily available to the public, may divulge the identity of the victim.” As the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports "shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality"). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Turner 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathleen Turner Mark LeBlanc