Andrew Quemere v. Worcester County District Attorney's Office (SPR 20221454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2022 SPR22/1454 Mark Relation, Esq. Assistant District Attorney Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Andrew Quemere appealing the response of the Worcester County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2022, Mr. Quemere requested six categories of records including: [1] All video and audio recordings of fatal shootings by police officers that occurred from January 1, 2012 to the present [3] All video and audio recordings of witness interviews related to investigations of fatal shootings by police officers that occurred from 2012 to the present [4] All transcripts of witness interviews related to investigations of fatal shootings by police officers that occurred from 2012 to the present[.] Previous appeal This request was the subject of a previous appeal. See SPR22/1200 Determination of the Supervisor of Records (June 6, 2022). In my June 6th determination, I found the Office did not meet its burden to withhold responsive records, in their entirety, under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). The Office provided a further response on June 23, 2022. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1454, 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 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

Mark Relation, Esq. SPR22/1454 Page 2 July 8, 2022 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. 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 Office’s June 23rd response In its June 23, 2022 response, the Office reiterated that it withheld certain records under Exemptions (c) and (f) of the Public Records Law. 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. 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).

Mark Relation, Esq. SPR22/1454 Page 3 July 8, 2022 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. 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. 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. Item 1 Regarding Item 1, the Office, citing Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004), asserts that the records are exempt because of “. . . the deceased persons’ interest in their own image, and the deceased persons’ family members rights to peace of mind, control over the disposition and images of their lost loved ones, and protection from harassment and personal embarrassment resulting from the release of death-scene images. These personal privacy rights in the instant case are similarly rooted in cultural traditions from ‘time immemorial,’ the common law, and the Constitution. There is significant weight against

Mark Relation, Esq. SPR22/1454 Page 4 July 8, 2022 disclosure in this case. On the other side of the scale there is no articulated or substantiated interest beyond the general public interest in disclosure of government records.” Under Exemption (f), the Office reiterates that “. . . these records are ‘investigatory materials’ and are therefore exempt from disclosure pursuant to exemption (f) of the Public Records Law.” Citing Bougas, the Office asserts that “[t]he requested recordings are elements of a ‘complete account[] of police investigatory efforts,’ and so are ‘investigatory materials;’ exempt from disclosure. G.L.c. 4 § 7 (26)(f).” Based on the Office’s response, I find the Office has not demonstrated how the video and audio recordings, in their entirety, constitute investigatory materials, nor how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is additionally uncertain how the audio and video recordings, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether these records are available from other sources. PETA, 477 Mass. at 292. The Office must clarify whether segregable portions can be provided. Items 3 and 4 Regarding the above Items, the Office states: [V]ideo and audio recordings and transcripts of witness interviews, those records are exempt from disclosure as they constitute “investigatory materials” under exemption (f) and contain personal information pursuant to exemption (c). See G.L. c. 4 § 1 (26)(c); G.L. c. 4 § 7 (26)(f). . . . In accordance with the Supreme Judicial Court’s ruling [in Bougas], video and audio recordings and transcripts of witness interviews are necessarily fully exempt from disclosure as they constitute “statements taken from witnesses” and are therefore “investigatory materials” exempt from disclosure. Id.; G.L. c. 4 § 7 (26)(f). Furthermore, witness interviews contain certain private information such as witness names, dates of birth, social security numbers, telephone numbers; residential addresses, motor vehicle registrations and other personal identifying information. This category of information encompasses “intimate details of a highly personal nature” and “would result in personal embarrassment to an individual of normal sensibilities.”; PETA, 477 Mass. at 292. Therefore, that information is additionally exempt from disclosure pursuant to exemption (c) of the Public Records Law. G.L. c. 4 § 7 (26)(c).

Mark Relation, Esq. SPR22/1454 Page 5 July 8, 2022 Based on the Office’s response, it is unclear how the witness statements, in their entirety, contain confidential investigative or internal techniques, procedures, or sources. It is additionally uncertain how disclosure of any segregable portion “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). With respect to Exemption (c), it is unclear why witness names, social security numbers, personal telephone numbers, motor vehicle registrations or other personal identifying information cannot be redacted from the witness statements and non-exempt portions provided. As a result, I find the Office has not established that the witness statements, in their entirety, contain intimate details of a highly personal nature. Consequently, I find the Office has not met its burden to withhold the responsive records, in their entirety, under Exemptions (c) and (f) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Mr. Quemere 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 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere