Gary Romagna v. Haverhill, City of - Police Department (SPR 20230355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2023 SPR23/0355 Aniela Ricci Records Clerk Haverhill Police Department 4 Summer Street Haverhill, MA 01830 Dear Ms. Ricci: I have received the petition of Gary Romagna, Esq., of Gary F. Romagna & Associates, appealing the response of the Haverhill Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2023, Attorney Romagna requested “[u]nredacted copies of any and all 911 recordings, log entries (including daily activities log, daily journals and the like)…” related to a specific incident. The Department responded on February 13, 2023. Unsatisfied with the Department’s response, Attorney Romagna petitioned this office, and this appeal, SPR23/0355, 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. 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. 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 SPR23/0355 Page 2 March 7, 2023 The Department’s February 13th response In its February 13, 2023 response, the Department stated that it was withholding one of the requested records under Exemption (a) of the Public Records Law and redacting two additional records under Exemption (c) of the Public Records Law. Withheld 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. In its response, the Department stated the following: The following statutorily exempt and prohibited records that can be withheld from public inspection are, including but not limited to, victim and victim family information (c. 66, s. 10B); sex victim and rape report information (c. 265, s. 24c); domestic violence reports (c. 209A, s. 1); harassment order information (c. 285E, s. 10); immediate threat reports (c. 90, s. 22I); firearm information (c. 66, s. 10); child requiring assistance (CHINS) (c.119); juvenile delinquency reports (c. 119, s. 60A); sex offender information (c. 6, s.178I); search warrant and

Aniela Ricci SPR23/0355 Page 3 March 7, 2023 affidavits; registry of motor vehicle information; and criminal offender record information (CORI) (c. 6, s. 167). Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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’s response did not contain the specificity required in a denial of access to public records. The Department merely cites a long list of statutes without indicating which ones it intends to use to withhold the requested records. Further, the Department does not provide an explanation of the applicability of the statutes to the responsive records. Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Based on the Department’s response, I find the Department has not met its burden to withhold the requested records under Exemption (a) of the Public Records Law. Redacted records 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:

Aniela Ricci SPR23/0355 Page 4 March 7, 2023 (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). 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 its February 13, 2022 response, the Department stated “... pursuant to Exemption C (Privacy) of the Public Records Law, the Haverhill Police Department is unable to provide you with an unredacted copy of [the incident report]. . . .” The Department further stated that “[w]ith regard to your request for the 911 recording for [the incident report], please see the attached corresponding recorded 911 call. Kindly note that portions of this call have been withheld/redacted pursuant to Exemption C (Privacy) of the Public Records Law as stated above.” Based on the Department’s response, it is unclear what information from the 911 recording has been redacted. Neither has the Department demonstrated how that the redacted information constitutes intimate details of a highly personal nature. It is additionally uncertain whether any of that information is available from other sources. PETA, 477 Mass. at 292. 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. Conclusion Accordingly, the Department is ordered to provide Attorney Romagna 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. Attorney Romagna may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Aniela Ricci SPR23/0355 Page 5 March 7, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Gary Romagna, Esq.