Kevin Rothstein v. Boston, City of - Public Records (SPR 20212410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2021 SPR21/2410 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Kevin Rothstein of WCVB-TV, appealing the response of the Boston 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 2, 2021, Mr. Rothstein requested “[a] report, memo, finding or other document pertaining to the result(s) of an internal affairs investigation into 911 calls during the robbery and murder of [two identified individuals] on May 5, 2017 in Boston.” Previous appeal This request was the subject of a previous appeal. See SPR21/0708 Determination of the Supervisor Records (April 5, 2021). In my April 5th determination, I found the Department did not identify the records in its possession, nor explained with specificity how the records constitute disciplinary records. Accordingly, I ordered the Department to provide Mr. Rothstein with a response. Subsequently, the Department provided a response on June 29, 2021. Unsatisfied with the Department’s response, Mr. Rothstein petitioned this office and this appeal, SPR21/2410, 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. 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. SPR21/2410 Page 2 October 4, 2017 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 June 29th response In its June 29, 2021 response, the Department explains “. . . that the responsive record relates to a disciplinary investigation into a non-uniformed civilian; someone who is not a police officer. The [previous] response clearly distinguished the findings in the Worcester case from that of the Wakefield Teachers Association case. Justice Grasso stated that the appeals court decision in Worcester relates solely to the public status of a disciplinary matter related to police officers. The Supreme Judicial Court stated in its Wakefield decision that personal investigation files are absolutely exempt from disclosure. Worcester did not overturn Wakefield.” The Department indicates that “. . . the Worcester decision applies solely to internal affairs investigations of police officers. In the present matter the investigated person was not a police officer. The person was a civilian. To find otherwise would subject any ordinary disciplinary investigation to disclosure, and that is clearly not the intent of the Grasso decision. The [Department] maintains that the responsive record is a disciplinary investigation file associated with allegations of misconduct against a non-uniformed civilian employee of the [Department]. The person investigated is not a police officer. Worcester applies to internal affairs investigations of police officers.” In its March 5th response the Department claimed the records are personnel records and by inference claimed Exemption (c). 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). 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,

Shawn A. Williams, Esq. SPR21/2410 Page 3 October 4, 2017 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). 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. 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. Although the Department claims the report is a disciplinary investigation regarding a civilian, it is unclear how the report, in its entirety, contains intimate details of a highly personal nature or how disclosure of the redacted information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. See PETA, 477 Mass. at 292. Further, the Department’s response does not address the balancing test outlined in PETA. Id at 291. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Rothstein with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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

Shawn A. Williams, Esq. SPR21/2410 Page 4 October 4, 2017 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein