Andrew Quemere v. Revere, City of - Police Department (SPR 20221419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2022 SPR22/1419 Captain Michelle Mangino Records Access Officer Revere Police Department 400 Revere Beach Parkway Revere, MA 02151 Dear Captain Mangino: I have received the petition of Andrew Quemere appealing the response of the Revere Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 17, 2022, Mr. Quemere requested: [1] All police internal affairs records related to [a named individual;] [2] All arrest reports, summons reports, and other police reports related to assault and battery charges, improper storage of a firearm charges, and any related charges against [a named individual;] [3] All mugshots related to [a named individual’s] arrest[;] [4] The most recent police ID card photographs to the above-named person[.] On June 1, 2022, the Department gave an initial response indicating a further response would be provided. On June 20, 2022, the Department provided the further response. Unsatisfied with the Department’s June responses, Mr. Quemere petitioned this office and this appeal, SPR22/1419, 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). 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

Captain Michelle Mangino SPR22/1419 Page 2 July 1, 2022 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 20th Response In its June 20, 2022 response, the Department cites Exemptions (a), (c) and (f) of the Public Records Law to redact and/or withhold the requested records. 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 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. In its response, the Department cited G. L. c. 41, § 97D which provides 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

Captain Michelle Mangino SPR22/1419 Page 3 July 1, 2022 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 . . . G. L. c. 41, § 97D. In its June 20th response, the Department states that “[t]his [internal affairs] report falls under [G. L. c. 41, § 97D] and shall not be public[.]” Based on the Department’s response, it is unclear how the records relating to an internal affairs investigation falls within the type of records contemplated in G. L. c. 41, § 97D. The Department merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). 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) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Captain Michelle Mangino SPR22/1419 Page 4 July 1, 2022 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 response regarding the request for internal affairs records, the Department redacted certain information and stated, “[t]he release of certain personnel information could disrupt the government’s capability to conduct sensitive and careful investigations regarding employees.” 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 how the requested records can be withheld. 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 disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other

Captain Michelle Mangino SPR22/1419 Page 5 July 1, 2022 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. Under Exemption (f), the Department, in regard to one internal affairs record, asserts: “I have redacted the name of the victim and the complainant. Law enforcement needs to be able to provide assurance of confidentiality to private citizens so that they will speak openly about matters under investigation.” Regarding another responsive internal affairs record, the Department states: A records custodian may be permitted to withhold an entire report if the identity of witnesses is known to the requester. Such a record could not possibly be redacted in a manner to avoid identification of such witnesses. Here, the report contained victim and witness statements that if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness…. Where the Department states that it redacted identifying information of voluntary witnesses and statements, I find the Department may properly claim Exemption (f) in redacting from the records, the identities and identifying information of the complainant and victim. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). With regard to request number 4 and another internal affairs investigation report, the Department advised that these requests are still being worked on. Based on the Department’s response, it is unclear if the Department possesses additional records responsive to the request. 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). For the reasons set forth above, I find the Department did not meet its burden with regard to this public records request. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to his request in a manner consistent with the Public Records Law and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Quemere may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Captain Michelle Mangino SPR22/1419 Page 6 July 1, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere