Christopher Nesbitt v. Haverhill, City of - Police Department (SPR 20230229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2023 SPR23/0229 Aniela Ricci Records Access Officer Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 01830 Dear Ms. Ricci: I have received the petition of Christopher Nesbitt appealing the response of the Haverhill 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 January 27, 2023, Mr. Nesbitt requested: [1] Any dashcam video from any police cruisers involved in this incident;… [2] Any footage from any body worn camera of any officer involved;… [3] The initial call made to the HPD (911); and [4] Copies of all reports generated as a result of this incident. On February 7, 2023, the Department provided a response. Unsatisfied with the response, Mr. Nesbitt petitioned this office and this appeal, SPR23/0229, 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(d)(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 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

Aniela Ricci SPR23/0229 Page 2 February 22, 2023 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. The Department’s February 7th Response In its February 7, 2023 response, the Department asserts that it is withholding one of the responsive records, the 911 call, under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26). 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). 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. 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).

Aniela Ricci SPR23/0229 Page 3 February 22, 2023 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. In its response, the Department argues: [T]he 911 Call concerning the event on January 26, 2023 has been denied pursuant to Exemption C (Privacy)…. Exemption C contains two separate bases for nondisclosure and as is relevant here, the second clause of the exemption covers “materials or data relating to a specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Exemption C … prohibits the release of personal data that may constitute an invasion of privacy. See M.G.L. c. 214, s. 1B as appearing in St. 1973, c. 1114, s. 62, “to disclose personal data where such disclosure will result in an unreasonable, substantial or serious interference with the privacy of a data subject…”. Exemption C (Privacy) indicates that “personnel and medical files or information; also, any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Exemption C has three individual components: (1) Personal Privacy – is limited to “intimate details of a highly personal nature. 950 CMR 33.16 Invasion of Personal Privacy.”; (2) Medical Information – “medical information will always be of a sufficiently personal nature to warrant exemption;” (3) Personnel Information – The Appeals Court of Massachusetts distinguished “personnel records” from “internal affairs” records or information to determine employment decisions are exempt. The Department has not met its burden to withhold the responsive record, in its entirety, pursuant to Exemption (c). Based on the Department’s response, it is uncertain how the recording contains 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. Further, the Department must provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. It is additionally uncertain how the records cannot be segregated and non-exempt portions provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). The Department must clarify this matter.

Aniela Ricci SPR23/0229 Page 4 February 22, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Nesbitt with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Christopher Nesbitt