Cory Arter v. Westford, Town of - Police Department (SPR 20231319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 28, 2023 SPR23/1319 Tricia Targ Administrative Assistant Records Division Westford Police Department 53 Main Street Westford, MA 01886 Dear Ms. Targ: I have received the petition of Cory Arter, Esq. appealing the response of the Westford 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 April 4, 2023, Attorney Arter requested the following records: [1.] All documents, including any video or witness statements, whether oral or recorded, which identify any witness or which were taken from or created by any witness to the accident on June 29, 2020. [2.] Any recordings of any conversations with any party involved in this incident, including but not limited to [three specified individuals with corresponding birth dates] whether taken by body cam, video or other recording device. [3.] A complete copy of all color photographs taken by the Westford Police of the incident scene, any party or parties involved, or any other potential evidence gathered by the Westford Police Department as part of its investigation. [4.] Any correspondence, including e-mails, texts or other documents, to and/or from any party discovered, subpoenaed, copied or collected from any party herein involved, relating to, concerning, or discussing the incident or the surrounding circumstances. [5.] Any reports, from any party, in the possession of the Westford Police Department relating to the incident on June 29, 2020. [6.] Any complaint, writing, report, or recording or turret tape in the possession of 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

Tricia Targ SPR23/1319 Page 2 June 28, 2023 the Westford Police Department, relating to any incident or allegation or events which occurred on April 19, 2020 or April 20, 2020 by and between [two specified individuals] and/or any incident on those dates involving [specified individual]. [7.] Any complaint, writing, report, or recording or turret tape in the possession of the Westford Police Department, relating to any incident or allegation or events which occurred on June 26, 2020 by and between [three specified individuals]. [8.] Any other complaints, writings, recordings, documents, or record of any calls or incidents between [two specified individuals] between January 1, 2020 and June 29, 2020 in the possession of the Westford Police Department. [9.] A copy of any restraining orders applied for or issued at, by or through the Westford Police Department involving [three specified individuals]. Previous appeal This request was the subject of a previous appeal. See SPR23/1129 Determination of the Supervisor of Records (June 12, 2023). The Department provided a response on June 5, 2023. Unsatisfied with the response, Attorney Arter petitioned this office and this appeal, SPR23/1319, 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. 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.

Tricia Targ SPR23/1319 Page 3 June 28, 2023 The Department’s June 5th response In its June 5, 2022 response, the Department cited Exemptions (a) and (c) of the Public Records Law to withhold the requested 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. Citing Exemption (a), the Department stated, “[y]our request for incident reports… are domestic violence related under Chapter 41 Section 97D and you are not the victim.” G. L. c. 41, § 97D provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information,

Tricia Targ SPR23/1319 Page 4 June 28, 2023 prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B ... G. L. c. 41, § 97D. 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: (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 response, the Department stated the following: Exemption (c): This exemption applies to any other materials or data relating to a specifically named individual, the disclosure of which may constitute an

Tricia Targ SPR23/1319 Page 5 June 28, 2023 unwarranted invasion of personal privacy. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy (i.e. DOB, Social Security Number, other personal identifying information). Burden of specificity; segregable portions The Department has not met its burden of specificity in claiming Exemptions (a) and (c) to withhold the requested records. Pursuant to 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. It is unclear if the Department identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Although the Department states that the incident reports in its possession should be withheld, it is unclear what additional record(s) responsive to Attorney Arter’s request it is withholding. Therefore, the Department must identify the record(s) it has in its possession that it withheld under Exemptions (a) and (c), as well as provide specific reasons for such withholding. Further, the Department’s response did not contain the specificity required in withholding the requested records. The Department must clarify which exemption is applicable to each document, as well as provide specific reasons for the withholding under the cited exemption. Conclusion Accordingly, the Department is ordered to provide Attorney Arter 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 Arter may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Tricia Targ SPR23/1319 Page 6 June 28, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Cory Arter, Esq.