John D. Rousseau v. West Boylston, Town of - Police Department (SPR 20230879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0879 Timothy Benson Detective West Boylston Police Department 141 Sterling Street West Boylston, MA 01583 Dear Detective Benson: I have received the petition of John Rousseau appealing the response of the West Boylston Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On February 27, 2023, Mr. Rousseau requested two police reports. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0542 Determination of the Supervisor of Records (April 3, 2023). In my April 3rd determination I found that the Department intended on providing a further response and closed the appeal. On April 15, 2023, the Department responded stating they were withholding records pursuant to Exemptions (c) and (f). Unsatisfied with the Department’s response, Mr. Rousseau petitioned this office and this appeal, SPR23/0879, 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 town 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 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

Timothy Benson SPR23/0879 Page 2 May 16, 2023 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 custodian must provide the responsive records. The Department’s April 15th response In the Department’s April 15, 2023 response they indicated that they were withholding responsive records pursuant to Exemptions (c) and (f). 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of Real Property 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). 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

Timothy Benson SPR23/0879 Page 3 May 16, 2023 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 April 15, 2023, response they stated the following: The call log and associated case report were marked confidential by the reporting officer. The victim/witness in this case is a probation officer with the MA Trial Court. Mr. Rousseau is currently one of his probationers. Since his release from prison Mr. Rousseau according to the victim/witness has on numerous occasions threatened him and his immediate family. Mr. Rousseau knows the residential address on the victim/witness, and could potentially follow through with the threats. An internal investigation was conducted by this department, and the victim/witness did not wish to pursue any type of criminal or civil action at this time. 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. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 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 289-290. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 ------------------------------- Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In the Department’s April 15, 2023, they state “[t]his request is being denied by this department under the following exemptions: materials pertaining to on-going investigations or prosecutions (G.L. c. 4, § 7(26)(f)).”

Timothy Benson SPR23/0879 Page 4 May 16, 2023 The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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 explain whether segregable portions can be provided. See G. L. c. 66, § 10(a). Further, it is unclear how the call logs and reports constitute investigative materials and how disclosure “would prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Mr. Rousseau 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: John Rousseau