Good Citizen v. Chicopee, City of - Police Department (SPR 20231101)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2023 SPR23/1101 Officer Anouson Souvannasane Chicopee Police Department Records Access Officer 17 Springfield Street Chicopee, MA 01013 Dear Officer Souvannasane: I have received the petition of “Good Citizen” (Requestor) appealing the response of the Chicopee 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 May 3, 2023, the Requestor sought “Video Recording of both inside lobby and main entrance outside of Chicopee Police Department on the date of 05/01/2023 from 6:55 p.m. until 7:15 p.m.” The Department responded on May 18, 2023, citing Exemption (c) of the Public Records Law for withholding the responsive records. Unsatisfied with the Department’s response, the Requestor 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. 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 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

Officer Anouson Souvannasane SPR23/1101 Page 2 June 5, 2023 custodian must provide the responsive records. The Department’s May 18th Response In its May 18, 2023 response, the Department states that it is withholding “video of the lobby of the police department and exterior doors adjacent to [the lobby]” pursuant to Exemption (c) of the Public records Law. See G. L. c. 4, § 7(26)(c). 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 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 argues the following: The requested video of the lobby of the police department and exterior doors adjacent to, includes interactions between private citizens and appears to be a custodial exchange of juvenile children between parents. They do so not expecting this exchange to be publicized for the world to see as custody disputes [can] be of a contentious nature and may be a point of embarrassment for those involved. There is no police/government presence or police interaction with the

Officer Anouson Souvannasane SPR23/1101 Page 3 June 5, 2023 public at any point during the requested time period and therefore, no public interest in auditing government actions. . . . Citizens come to the police department for a wide variety of reasons looking for a safe place to conduct whatever business they may have here. Many times this business is sensitive in nature. These cameras are in place for the security of the building, its occupants, and visitors. They are not meant to publicize the events that take place inside without regard to the sensitivity of the business being conducted. Releasing videos like this for anonymous public review would deteriorate the public’s sense of security to conduct business here. ... While this is a public building and anyone could walk in and see who is here, they would do so at risk of being identified, a deterrent for those who would use this information maliciously. Based on the Department’s response, although the juvenile children and parents depicted in the responsive videos may have a privacy interest under Exemption (c), it is unclear how the videos can be withheld in their entirety. Specifically, the Department must explain whether it is able to alter or redact the videos so as to protect the identities of the children and parents. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify whether segregable portions of the responsive videos can be provided. Conclusion Accordingly, the Department is ordered to provide the Requestor with a response to the 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: “Good Citizen”