Keith Eddings v. Newburyport, City of - Police Department (SPR 20232081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 31, 2023 SPR23/1911; SPR23/2081 Richard J. Siemasko, Esq. Senior Lieutenant Newburyport Police Department 4 Green Street Newburyport, MA 01950 Dear Lieutenant Siemasko: I have received the petitions of Keith Eddings appealing the responses of the Newburyport 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 15, 2023, Mr. Eddings requested two incident reports for a specific address. Prior Appeals The requested records were the subject of prior appeals. See SPR23/0565 Determination of the Supervisor of Records (April 7, 2023); SPR23/0969 Determination of the Supervisor of Records (May 18, 2023); and SPR23/1234 Determination of the Supervisor of Records (June 23, 2023). In my June 23rd determination, I found that the Department did not meet its burden to withhold the requested records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26) (a), (c), (f). On July 6, 2023, the Department responded and provided the requested incident reports. Unsatisfied with the Department’s response, Mr. Eddings petitioned this office and this appeal, SPR23/2081, 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 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

Richard J. Siemasko, Esq. SPR23/1911; SPR23/2081 Page 2 August 31, 2023 order to withhold a requested record. G. L. c. 66, § 10(d)(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…”); 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). 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. SPR23/2081 Current Appeal In the Department’s July 6, 2023 response, the Department provided Mr. Eddings with the requested incident reports. In his current appeal, Mr. Eddings claimed that the Department did not provide him with all responsive records. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In a telephone call with a Department representative, the Department confirmed that it provided all the responsive incident reports in the Department’s possession. Consequently, I find that Mr. Eddings’ appeal regarding this request is resolved. SPR23/1911 On March 30, 2023, Mr. Eddings requested “…copies of videos recorded by a body camera carried by [a named officer] involving a complaint by [a named individual] on February 27, 2023…” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0910 Determination of the Supervisor of Records (May 11, 2023). In my May 11th determination, I ordered the Department to provide Mr. Eddings with a further response. On May 26, 2023, the Department responded and indicated that it was withholding records pursuant to Exemptions (c) and (f) of the

Richard J. Siemasko, Esq. SPR23/1911; SPR23/2081 Page 3 August 31, 2023 Public Records Law, and because of active litigation. Unsatisfied with the Department’s response, Mr. Eddings petitioned this office and this appeal, SPR23/1911, was opened as a result. The Department’s May 26th response In the Department’s May 26, 2023 response, it stated that it withheld the record pursuant to Exemptions (c) and (f) of the Public Records Law, and also cites active litigation. The Department explained, “[t]here is an active litigation relative to this matter in the Housing Court.” The Department further stated the following: 950 CMR 32.08, allows withholding of police reports and BWC videos if the records in question are the subject of dispute in active litigation, administrative hearings, or mediation. Which in this case they are. Using a public request to get materials for court is prohibited. However, the materials you requested could be made available through the discovery process. 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. Based on the Department’s response, it is unclear how the record is related to the ongoing litigation. The Department must clarify this matter. 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

Richard J. Siemasko, Esq. SPR23/1911; SPR23/2081 Page 4 August 31, 2023 (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). 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 explains that “…[d]isclosure of this record relating to a named individual may constitute an unwarranted invasion of personnel privacy.” The Department has not demonstrated that the records, in their entirety, contain intimate details of a highly personal nature. Further, it is unclear how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. 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

Richard J. Siemasko, Esq. SPR23/1911; SPR23/2081 Page 5 August 31, 2023 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 289-90. Under Exemption (f), the Department states the following: Exemption F the investigatory exemption, provides custodians a basis for withholding: 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. Accordingly, a records custodian may withhold any information relating to an ongoing investigations or prosecutions that could potentially alert suspects to the activities of investigative officials. (G.L. c. 4, § 7(26)(f)) The legislature also designed this exemption to allow Officers to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Any details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt. This record could not possibly be redacted in a manner to avoid identification of such witnesses/victims. Although the Department states that there is an ongoing investigation, it is unclear how the release of the record would compromise the ongoing investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). It is additionally uncertain why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality of witnesses. 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). Conclusion Accordingly, the Department is ordered to provide Mr. Eddings 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.

Richard J. Siemasko, Esq. SPR23/1911; SPR23/2081 Page 6 August 31, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Keith Eddings