Antonina Khramova v. Massachusetts State Police (SPR 20221652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2022 SPR22/1652 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Antonina Khramova appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2022, Ms. Khramova requested “unedited without any redaction complete records relating to our family…” On April 6, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Khramova petitioned this office and this appeal, SPR22/1652, 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. 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 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

Allison Mondello SPR22/1652 Page 2 August 1, 2022 custodian must provide the responsive records. The Department’s April 6th Response In its April 6, 2022 response, the Department cites Exemptions (a), (c), and (f) to withhold the responsive 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 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. The Department asserts that “[g]iven the records relate almost exclusively to the identity, safety, and welfare of a juvenile(s), the Department is withholding the records pursuant to [Exemption (a)].” Citing various statutes, the Department argues that “the Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure.” Based on the Department’s response, it is unclear what records the Department possesses that it is withholding under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the type of records it has in its possession that it is withholding under Exemption (a). Additionally, it is uncertain how the records can be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the

Allison Mondello SPR22/1652 Page 3 August 1, 2022 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). The Department must explain why segregable portions cannot be provided. 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., 391Mass. 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 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. 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). In its response, the Department asserts that it is “withholding dates of birth, social security numbers, license numbers, medical information, and information relating to family dispute pursuant to [Exemption (c)].” The Department has not met its burden to withhold the responsive records pursuant to Exemption (c). Although the Department states it believes it may withhold sections of the responsive records under Exemption (c), the Department has not sufficiently explained its reasoning. It is uncertain how this information constitutes

Allison Mondello SPR22/1652 Page 4 August 1, 2022 intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Department’s response, whether this information is available from other sources. The Department must clarify these matters. 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, 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438. In its response, the Department asserts that “to the extent responsive records contain statements of witnesses and complainants, the Department is withholding these records pursuant to [Exemption (f)].” To the extent the records contain the identities and identifying information of the voluntary witnesses or complainants, the Department may properly claim Exemption (f) in

Allison Mondello SPR22/1652 Page 5 August 1, 2022 redacting the information from the records. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f)). However, I find the Department has not met its burden of specificity to withhold witness statements from disclosure under Exemption (f) in their entirety. The Department did not demonstrate 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 under (f). Consequently, based on the Department’s April 6th response, I find the Department has not met its burden of specificity in responding to the request, and in denying access to the records under Exemptions (a), (c), and (f). Conclusion Accordingly, the Department is ordered to provide Ms. Khramova 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, Manza Arthur Supervisor of Records cc: Antonina Khramova