Rosemary Scapicchio, Esq. v. Easton, Town of - Police Department (SPR 20231305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1305 Chief Keith Boone Easton Police Department 46 Lothrop Street North Easton, MA 02356 Dear Chief Boone: I have received the petition of Attorney Rosemary C. Scapicchio appealing the response of the Easton 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 March 20, 2023, Attorney Scapicchio requested the following records regarding an identified individual for a specified incident: [1] Body camera footage from all officers present at any time during the incident on February 5, 2023[;] [2] All 911 turret tapes[;] [3] All communications between [named individual] and the Easton Police Department[;] [4] All photos taken during the incident[;] [5] All police reports related to the incident[;] [6] All video of this incident seized or reviewed[;] [7] All crime reconstructions, evidence, and reports[;] [8] The autopsy report, toxicology report and complete medical examiner file[;] [9] The CAD sheets[;] [10] Any and all calls for assistance from [specified address], in the last five years[;] [11] The name of any company hired and/or paid to clean up the scene at [a specified address]. Prior Appeal This request was the subject of previous appeals. See SPR23/0696 Determination of the Supervisor of Records (April 24, 2023) and SPR23/0983 Determination of the Supervisor of Records (May 24, 2023). In my previous determination, I found that the Department had not met its burden to withhold information under Exemption (f). The Department provided a response on 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

Chief Keith Boone SPR23/1305 Page 2 June 29, 2023 June 8, 2023. Unsatisfied with the response, Attorney Scapicchio petitioned this office and this appeal, SPR23/1305, 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, § l0A(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. 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 June 8th Response In its June 8, 2023 response, the Department provided police reports, CAD sheets, turret tapes, photos, and video responsive to requests 2, 4, 5, 6, 9, 10, and 11 and cited Exemption (c) of the Public Records Law to redact information regarding request 9. The Department further cited Exemption (c) of the Public Records Law to withhold records responsive to request 6. In response to requests 1, 3, 7, and 8, the Department stated, “the Department holds no responsive records.” Current Appeal In her appeal, Attorney Scapicchio states, “[the Department]… will still not provide us with the drone footage from the day of the incident. Their claim is that ‘privacy interests revealed by the drone footage outweigh the public’s need to view the footage.’” Exemption (c) Exemption (c) permits the withholding of:

Chief Keith Boone SPR23/1305 Page 3 June 29, 2023 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). 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 citing Exemption (c), the Department states: The privacy interests revealed by the drone footage outweigh the public’s need to view the footage. The drone footage recorded the interior of the residence at the incident prior to when officers reentered the residence, including footage of the named individual’s body. First, disclosing this drone footage would personally embarrass the named individual’s parents who reside at the address, which a person of normal sensibilities in the same situation would similarly feel embarrassed by. Second, the drone footage includes intimate details of a highly personal nature as it relates to personal and family reputations, namely the death of a relative. And third, these intimate details are certainly not available from any other source. Yet the substantive information within the drone footage, such as the timing of the incident, is available in narrative format in the records… you

Chief Keith Boone SPR23/1305 Page 4 June 29, 2023 already received. In sum, the privacy interests here are extremely high and outweigh the significantly lower public interest in disclosure… In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold the responsive record, the Department must provide this office with un-redacted copy of the drone footage for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copy of the responsive record for in camera inspection without delay.

Chief Keith Boone SPR23/1305 Page 5 June 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Rosemary Scapicchio, Esq. Alexander Castro, Esq.