Andrew Quemere v. Malden, City of - Office of the City Clerk (SPR 20221216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2022 SPR22/1216 Greg Lucey City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Andrew Quemere appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2022, Mr. Quemere requested the following: - All police internal affairs records related to [a named officer] - All arrest reports, summons reports, and other police reports related to assault and battery charges and any related charges against the above-named person - All mugshots related to the above-named person’s arrest - The most recent police ID card photographs of the above-named person. Previous Appeal This request was the subject of a previous appeal. See SPR22/1069 Supervisor of Records Determination (May 11, 2022). In my May 11th determination, I closed SPR22/1069 in light of the City’s intent to provide a supplemental response. The City responded on May 24, 2022. Unsatisfied with the City’s response, Mr. Quemere appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Greg Lucey SPR22/1216 Page 2 June 8, 2022 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. Att’y 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 City’s Response In its May 24, 2022 response, and in an email to Mr. Quemere and this office on May 27, 2022, the City states that it is withholding internal affairs investigation records, and a police identification card photograph. The City cites Exemptions (a), (b), (c), (f), and (n) of the Public Records Law for withholding the responsive records. See G. L. c. 4, § 7(26)(a), (b), (c), (f), and (n). 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.

Greg Lucey SPR22/1216 Page 3 June 8, 2022 G. L. c. 41, § 97D With regard to the internal affairs records, the City cites G. L. c. 41, § 97D, which provides in pertinent 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 confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276. G. L. c. 41, § 97D. Under Exemption (a) and G. L. c. 41, § 97D, the City argues that “the entire content of” the responsive internal affairs file is exempt from disclosure. The City goes on to argue that “the statute is designed to protect not just the identity of the victim . . . but also to protect the identity of the alleged perpetrator and all facts, evidence, witness statements, etc. relative to the incident on which the report is based.” Based on the City’s response, the City has not demonstrated how the records relating to an internal affairs investigation fall within the type of records contemplated in G. L. c. 41 § 97D. Although certain portions of the responsive internal affairs investigation file may potentially fall under § 97D, the City has not met its burden to withhold the responsive internal affairs file, in its entirety, under Exemption (a) and G. L. c. 41, § 97D. G. L. c. 41, § 98D With regard to the identification card photograph, the City cites G. L. c. 41, § 98D, which provides in pertinent part; Each city or town shall issue to every full-time police officer employed by it an identification card bearing the officer’s photograph and identifying information. The secretary of public safety and security may adopt regulations relative to the form, content and issuance of such identification cards and to the carrying thereof by municipal police officers. Such identification card shall be carried on the officer’s person and shall be exhibited upon lawful request for purposes of identification.

Greg Lucey SPR22/1216 Page 4 June 8, 2022 G. L. c. 41, § 98D. Under G. L. c. 41, § 98D, the City argues the following: “Exhibited” is commonly defined as “shown”, “displayed”, or “presented for inspection”. The terms “lawful request” and “for purposes of identification” indicate a further limitation on the circumstances in which an identification card must be presented. Certainly, when interacting with a law enforcement officer, a member of the public has an interest in: - verifying that the individual is, in fact, a law enforcement officer and - ascertaining the law enforcement officer is the individual he purports to be. The city has provided verification that the officer in question has been issued an identification card, in compliance with the law. [The City] contend[s], however, that neither this statute nor an overriding public interest requires that a copy of the photographic image of a particular officer be provided on demand. As noted above, a statute under Exemption (a) 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. While G. L. c. 41, § 98D describes the circumstances in which an identification card must be presented, it does not expressly limit access to those circumstances. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Greg Lucey SPR22/1216 Page 5 June 8, 2022 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). As to the photograph, under Exemption (b), the City argues that “although all police officers carry and display identification cards as required by law, it is not a departmental practice to provide copies of the cards and/or photos, because to do so would limit the ability of police personnel to engage in undercover operations.” In this case, the City has not demonstrated that the identification card photos are solely related to internal personnel rule and practices of the government unit. Additionally, although the photographs may be governed by police department practice and policy, the photographs themselves are not policies or procedures that pertain to personnel rules or practices of the police department. Therefore, the City has not met its burden to withhold the responsive photograph under Exemption (b). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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

Greg Lucey SPR22/1216 Page 6 June 8, 2022 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). When analyzing a privacy claim, there is 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. As to the photograph, under Exemption (c), the City argues that no “overriding public interest requires that a copy of the photographic image of a particular officer be provided on demand. On the other hand, a particular officer does have a privacy interest in his image, in the same way that various statutes, including the public records law in exemptions (c) and (o), exempt certain personal identifying information from disclosure.” The City’s response has not demonstrated how the responsive photograph constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Accordingly, the City has not met its burden to withhold the responsive photograph under Exemption (c). 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. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Greg Lucey SPR22/1216 Page 7 June 8, 2022 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 to the internal affairs records, under Exemption (f), the City argues that “various materials in the file are exempt under MGL C. 4, s. 7 cl.26 (f) because the file contains investigatory materials, including witness and/or victim statements made freely and voluntarily with an expectation of confidentiality.” Although the responsive internal affairs file may contain the voluntary witness and victim statements described above, the City has not demonstrated how the responsive file may be withheld in its entirety under Exemption (f). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought

Greg Lucey SPR22/1216 Page 8 June 8, 2022 resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. With regard to the identification photograph, under Exemption (n), the City argues the following: The dissemination of a particular police officer’s image jeopardizes that officer’s safety and, potentially, the safety of those around him. When an officer displays his identification card during an interaction with a member of the public, he knows to whom it has been shown, can assess any potential threat that person might pose, and take what precautions he deems necessary to protect himself, both on duty and off. By contrast, the potential for widespread dissemination of a copy of his photo, deprives him of this knowledge and makes it difficult, if not impossible, for him to take concomitant precautions. Unfortunately, this is of particular concern in today’s social and political environment, where unprovoked attacks on law enforcement officers are all too common. The dissemination of a police officer’s image jeopardizes public safety, in general, because it impedes the ability of the department to use that officer in undercover operations, where the desired outcome is dependent upon the non-recognition of their status as law enforcement officials. Despite the City’s assertion of the possibility that officers could work in an undercover capacity, I find the responsive records do not strongly resemble the records enumerated in Exemption (n), particularly because the City has not demonstrated the likelihood that a terrorist would these duty photos “useful to maximize damage.” PETA at 290. Further, although the City argues that releasing the photograph could impact potential undercover functions, it has not demonstrated how the release of the photograph of the identified officer is likely to jeopardize public safety. As such, I find the City has not met its burden to withhold the responsive identification photograph under Exemption (n). Identification Card Photograph With regard to the identification card photograph, as described above, I find the City has not met its burden to withhold the responsive photograph. Accordingly, the City is ordered to provide Mr. Quemere with a response to that portion of his 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 the response to this office at pre@sec.state.ma.us. In Camera Inspection – Internal Affairs Investigation Records With regard to the internal affairs investigation file, in order to facilitate a determination as to the applicability of the exemption claims made by the City to withhold the responsive records, the City must provide this office with an un-redacted copy of the responsive records for

Greg Lucey SPR22/1216 Page 9 June 8, 2022 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 City’s custody and issue an opinion on the public or exempt nature 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 records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere