Joseph Smeraldi v. Department of State Police (SPR 20230254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2023 SPR23/0254 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Joseph Smeraldi 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 November 14, 2022, Mr. Smeraldi requested body worn camera (BWC) and cruiser mounted camera (CMC) video of a specified incident. The Department responded on February 1, and February 7, 2023, providing responsive records in redacted form. Unsatisfied with the Department’s response, Mr. Smeraldi appealed, and this case 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. Current Appeal In his appeal petition, Mr. Smeraldi argues the following: 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 SPR23/0254 Page 2 February 23, 2023 First the state cannot claim there is a privacy interest in the paperwork in the officers hands as that paperwork is supposedly the license and registration of both parties which was shared with both parties by the officers. Second G. L. c. 4, § 7(26)(c) cannot be used to withhold my own information. I am requested unreacted videos which show what the officer was holding. I also contest the redactions starting at 2:35 for the same reasons as the above law does not apply to my own information, nor does it apply to the license and registration information of the other party. There may be portions of the video that cover other privacy interest of the other driver, but the entire video from inside the cruiser should not be redacted. Finally G. L. c. 4, § 7(26)(n) should not apply either as releasing the video is not likely to jeopardize public safety or cyber security. There may be small portions of the video, such as login screens or CORI information for the other party, but all other information including my personal information should be released. Status of the Requestor Please note 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Smeraldi’s status as the subject of the videos will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Department’s February 1st and February 7th Responses In its February 1, and February 7, 2023 responses, the Department provides responsive records, and cites Exemptions (c) and (n) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(c), (n). 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).

Allison Mondello SPR23/0254 Page 3 February 23, 2023 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). 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. Under Exemption (c), the Department states that “per M. G. L. c. 4, § 7(26)(c), personal identifying or private information was redacted to prevent an invasion of personal privacy.” Based on the Department’s response, it is unclear what specific information has been redacted pursuant to Exemption (c). Further, it is unclear how the redacted portions of the video are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department did not 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. The Department must clarify these matters. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n).

Allison Mondello SPR23/0254 Page 4 February 23, 2023 Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the Department argues that “security information was redacted pursuant to M. G. L. c. 4, § 7(26)(n), due to visible cruiser computer screens, which display CORI and privacy information.” Based on the Department’s response, it is unclear how “CORI and privacy information” would constitute the type of information contemplated under Exemption (n). Additionally, the Department has not provided any information relating to the two prongs of Exemption (n) described above. See PETA, at 290. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Smeraldi with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Smeraldi