Brian E. Simoneau, Esq. v. Worcester, City of - Police Department (SPR 20222856)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2022 SPR22/2856 Michael Vigneux Records Access Officer Worcester Police Department 911 Lincoln Square Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Brian E. Simoneau, Esq. appealing the response of the Worcester 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 November 30, 2022, Attorney Simoneau requested: Booking [s]heet, booking photographs of [an identified person; identified Date of Birth; an identified social security number]. I am an attorney. I represent [an identified person, an identified OLN number, and an identified Date of Birth] in an identity theft case and I need the booking photograph of [an identified person, with an identified Date of Birth, [and] with an identified social security number] to show that this [identified person] arrested by the [Department’s Vice Squad] on 02/13/2008 and not my client. On December 13, 2022, the Department provided Attorney Simoneau with a response, denying Attorney Simoneau’s request for the booking photograph of the [identified person] pursuant to Exemption (c) under an implication of privacy of the identified person. As a result of the Department’s response, Attorney Simoneau petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the Requestor; Reason for the Request Attorney Simoneau is advised that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Simoneau’s interest in obtaining the 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

Michael Vigneux SPR22/2856 Page 2 December 27, 2022 reports shall have no bearing on the public nature of the record. 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) (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). 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. 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 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 info1mation is available from other sources. See People for the

Michael Vigneux SPR22/2856 Page 3 December 27, 2022 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. In the Department’s December 13th response, the Department asserts, “… the [Department] has considered the factors set forth above in light of the unique circumstances surrounding booking photographs. Booking photos are taken during a period of detainment, when the subject is enduring what to most would constitute embarrassing circumstances, and when the subject does not have opportunity to elect whether or not to participate. These [booking] photos generally carry a strong implication of guilt which may cause substantial harm to an individual’s reputation.” The Department asserts, “[p]otential employers and other acquaintances may easily access booking photos on these websites, hampering the depicted individual’s professional and personal prospects. See ACLU, 655 F.3d at 7, (noting that ‘may endanger one’s prospects for successful reintegration into the community’ (internal quotation marks omitted)).” The Department further stated, “[t]he steps many take to squelch publicity of booking photos reinforce a statutory privacy interest. Detroit Free Press, Inc., v. United States Department of Justice, 829 F. 3d 478 at 482 (6th Cir. 2016).” Finally, in addressing the balancing test of Exemption (c), the Department asserts, “[w]hile there may be instances where a compelling public interest outweighs the strong individual privacy interest in a booking photograph, the [Department] has determined that in this instance there is no such compelling public interest advanced by release of the requested booking photograph.” In light of the Department’s response, I find the Department has not met its burden to withhold any booking photographs of the identified person and any booking sheets pertaining to the identified person. In withholding any records under a privacy interest in Exemption (c) of the Public Records Law, the Department did not detail the three (3) factors in the PETA decision. The Department’s December 13th response did not explain (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 PETA, 477 Mass. at 292 (2017). It is additionally uncertain how any privacy interest outweighs the public interest in obtaining the requested information. As such, I find the Department has not met its burden to withhold the requested records under Exemption (c) of the Public Records Law.

Michael Vigneux SPR22/2856 Page 4 December 27, 2022 Conclusion Accordingly, the Department is ordered to provide Attorney Simoneau with a response to his request 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 the response to this office at pre@sec.state.ma.us. Attorney Simoneau may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brian E. Simoneau, Esq.