Joseph R. Smith v. Boston, City of - Police Department (SPR 20212416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2021 SPR21/2416 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 Joseph R. Smith, Esq. 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 January 3, 2021, Attorney Smith requested the following records regarding “[the Department] Offense/Incident Report #182008590 dated February 2, 2018: 1. With respect to any and all [Department] officers referenced in Offense/Incident Report #182008590 dated February 2, 2018 (including but not limited to [9 identified officers] on February 1, 2018: a. The nature of any charges against the above-referenced officers in any ongoing Internal Affairs investigations, b. The results of any completed Internal Affairs investigation involving in any ongoing Internal Affairs investigations, c. Any and all complaints filed or received by civilians, co-workers and/or superiors against this/these officers, d. With respect to [2 identified officers], referenced above, any and all information and/or documents that describe, outline and/or categorize the typical duties and/or responsibilities of these officers on February 1, 2018. 2. I further request any and all policies and procedures of the [Department] relative to the use of body cameras and/or internal cruiser dashboard cameras from 2016 to present. With regard to this request, I also request the following information: a. A list of [Department] officers and or cruisers that used, were assigned to use, or were equipped with body cameras and/or internal cruiser dashboard cameras during the time period of February 2017 to February 2019. b. Any and all information regarding whether any of the officers referenced in paragraph 1 above used, were assigned to use or were equipped with body cameras and/or internal cruiser dashboard cameras on February 1, 2018 or 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. SPR21/2416 Page 2 October 1, 2021 February 2, 2018 during the events described in [the Department] Offense/ Incident Report #182008590, referenced above. c. Any and all recorded body camera and/or internal cruiser dashboard camera footage of the events described in [the Department] Offense/ Incident Report #182008590 dated February 2, 2018. 3. I further request, with regard to [the Department] Offense/Incident Report #182008590, the following information referenced or alluded to therein: a. Any and all records and/or reports related to the ‘CJIS query of a gray Infiniti [with an identified registration] conducted by [2 identified officers] on February 1, 2018. b. Any and all stolen motor vehicle reports regarding a 2017 gray Infiniti Q70, [identified license plate and identified VIN#], owned or utilized by [an identified company].” Previous determination This request was the subject of a previous determination. See SPR21/0428 Determination of the Supervisor of Records (Supervisor) (March 5, 2021). In my March 5th determination, I found that despite being notified of the opening of this appeal and a communication from a member of the Public Records Division staff, no response was provided. I ordered the Department to provide Attorney Smith with a response to his request within 10 business days. On August 16, 2021, Attorney Smith received records accompanied by a response. Unsatisfied with the production of records and the Department’s response, Attorney Smith petitioned the Supervisor, and the current appeal was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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).

Shawn A. Williams, Esq. SPR21/2416 Page 3 October 1, 2021 The Department’s August 26, 2021 Response On August 26th, the Department provided a response, including copies of certain of the requested records. In its August 26th response, the Department informed Attorney Smith that the records responsive to his Request No. 1(a)-(c) were uploaded to the City’s Public Records Center. Further, the Department indicates that certain information was redacted under Exemption (f). Regarding Request No. 1(d) and Request No. 3, the Department provided its Rule 103 and its policies relative to the use of body cameras and/or internal cruise dashboard cameras through the City’s Public Records Center. With regard to Attorney Smith’s requests for Internal Affairs records, the Department provided copies of those records, redacted under Exemption (c). In its August 26th response, the Department states, “…any material, medical information and information regarding specific witnesses/victims have been removed to protect their privacy.” The Department also withheld an Internal Affairs investigation under Exemption (f) due to a pending investigation. Additionally, the Department states, “I am waiting on our Internal Affairs Division relative to the IAD file for [an identified officer]. Once I get that, I will send it immediately.” Finally, the Department states, “[o]ther than the records referenced, there are no other records responsive to this request. 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 Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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

Shawn A. Williams, Esq. SPR21/2416 Page 4 October 1, 2021 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. Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear what information contained in the Internal Affairs investigation records was properly withheld under Exemption (c). In camera inspection – records provided in redacted form In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold content within the records, the Department must provide this office with un-redacted copies of the responsive records, for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the redacted content of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted, to accompany the relevant un-redacted records pertaining to the Department’s redactions under Exemption (c), may be subject to disclosure.

Shawn A. Williams, Esq. SPR21/2416 Page 5 October 1, 2021 Additional issues in this appeal In a September 15th letter to the Supervisor, Attorney Smith objected to the Department’s response to his Request Number 1(a)-(c), including the production of redacted records pursuant to Exemption (c), and the substantially redacted resume of an identified officer. Attorney Smith is still seeking copies of the actual citizen complaints pertaining to, and referenced in the Internal Affairs investigations, and also referenced in the [identified officer’s resume]. Furthermore, Attorney Smith is still seeking any interviews and other records pertaining to the citizen complaints and completed Internal Affairs investigations. Attorney Smith posits, “[t]he [Department] has failed to identify with specificity that an exemption applies that would justify nondisclosure of these documents even in a redacted format.” Consequently, I find the Department must clarify whether additional records exist. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Order Accordingly, the Department is ordered to provide this office, without delay, with un- redacted copies of the records for an in camera inspection. In addition, the Department is ordered to provide Attorney Smith with a response to clarify the issues raised in his September 15, 2021 letter, 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: Joseph R. Smith, Esq.