Jeff Raymond v. Revere, City of - Police Department (SPR 20231722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2023 SPR23/1722 Captain Michelle Mangino Records Access Officer Revere Police Department 400 Revere Beach Parkway Revere, MA 02769 Dear Captain Mangino: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Revere 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 16, 2023, Mr. Raymond requested the following records: [1.] A copy of the document your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its “database listing complaints against police officers” planned for May of 2022…. [2.] Copies of any relevant responsive communications between a) your police department and/or your town officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [3.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [4.] Information concerning “complaints against police officers” issued in the calendar year 2022 and through March 31, 2023, preferably in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database…. 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

Captain Michelle Mangino SPR23/1722 Page 2 August 9, 2023 [5.] A copy of the document your police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the “2023 POST Commission Disciplinary Records Resubmission”…. [6.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with the “2023 POST Commission Disciplinary Records Resubmission” described above. Previous Appeal This request was the subject of a previous appeal. See SPR23/1388 Determination of the Supervisor of Records (July 6, 2023). In my July 6th determination, I ordered the Department to provide Mr. Raymond with a response to his request. On July 24, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1722, 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 custodian must provide the responsive records. The Department’s July 24th Response In its July 24, 2023 response, the Department states that it is withholding the responsive records for Item 1, Item 4, and Item 5. With respect to Item 2, the Department produced the responsive records. In regard to Item 3 and Item 6, the Department states that it does not have any responsive records. The Department argues that it is withholding records responsive to Items

Captain Michelle Mangino SPR23/1722 Page 3 August 9, 2023 1, 4, and 5 pursuant to Exemptions (c), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (d), (f). The Department also states that records responsive to Items 1, 4, and 5 should be withheld pursuant to ongoing and active litigation and on public policy grounds. 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 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. 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). Regarding Exemption (c), the Department asserts, “[h]ere, the disclosure of the requested records, particularly internal affairs investigations that terminated with factual conclusions of unsubstantiated, unfounded, or exonerated, would clearly be an unwarranted invasion of personal privacy detrimentally affecting an officer’s reputation and liberty interests and amounting to a due process violation.”

Captain Michelle Mangino SPR23/1722 Page 4 August 9, 2023 Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld pursuant to Exemption (c). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). With respect to Exemption (d), the Department argues, “[h]ere, factual conclusions of internal affairs investigations, especially since the passage of police reform, qualify as inter- agency memorandum relating to policy positions along with training plans, supervisory benchmarks, and disciplinary frameworks[.] As a result, such information must be withheld under the law.” I find that the Department’s response does not explain how the requested records are “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency” as required by Exemption (d). Further, the Department has not explained how their disclosure would taint the deliberative process. As a result, the Department has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Captain Michelle Mangino SPR23/1722 Page 5 August 9, 2023 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. Att’y 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. Regarding Exemption (f), the Department contends: Here, the records requested contain internal affairs investigations which many times involve civilian and police witnesses, the disclosure of which would not be in the public interest, and would chill the participation of those witnesses in the future if their involvement is publicized, which would be contrary to one of the central themes of police reform relative to accountability. As a result, such information must be withheld under the law. The Department also argues: The requested records are potentially relevant and material to the ongoing and active litigation in the Suffolk Superior Court consolidated case entitled Hovsepian, Scott, et al v. Massachusetts Peace Officer Standards and Training Commission (Docket No. 2248CV00906)….Clearly the requested public records may be sought by any of the parties to this litigation by way of subpoena or court order, and there is also the possibility of certain of these records could be impounded. If these records are released in complete or redacted form it could compromise, however slightly, the proper and just adjudication of this matter. In addition, the Department argues that, “[s]ome of the public records requested in this matter presumably would fall into that category of compromised data integrity, and as such, on public policy grounds, these records should be withheld.” Based on the Department’s response, the Department has not demonstrated how disclosure of the responsive records “would probably so prejudice the possibility of effective

Captain Michelle Mangino SPR23/1722 Page 6 August 9, 2023 law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). It is additionally uncertain how segregable portions cannot be provided. See Reinstein, 378 Mass. at 289-90 (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). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity an exemption which applies. 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. Conclusion Accordingly, the Department is ordered to provide Mr. Raymond 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. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond