Jeff Raymond v. Amherst, Town of - Police Department (SPR 20232375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 20, 2023 SPR23/2375 Captain Ronald A. Young Administrative Services Amherst Police Department 111 Main Street Amherst, MA 01002 Dear Captain Young: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Amherst Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department, officer complaints and disciplinary investigations, and the Amherst Police Department’s compliance with the Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020 to create a ‘database listing complaints against police officers.’” Specifically, 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.] Information and records concerning “complaints against police officers” issued in the calendar year 2022 and through July 31, 2023. [3.] 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.”... Previous appeal This request was the subject of a previous appeal. See SPR23/2128 Determination of the Supervisor of Records (September 21, 2023). In the September 21st determination, I ordered the 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 Ronald A. Young SPR23/2375 Page 2 October 20, 2023 Department to clarify its claims under Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). The Department provided a response on October 4, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2375, 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. The Department’s October 4th response In its October 4, 2023 response, the Department reiterates its arguments for redacting two spreadsheets responsive to Items 1 and 3 of the request. See G. L. c. 4, § 7(26)(a), (f). 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).

Captain Ronald A. Young SPR23/2375 Page 3 October 20, 2023 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. Under Exemption (a), the Department cites the Criminal Offender Record Information (“CORI”) Act, the Health Insurance Portability and Accountability Act (“HIPAA”) and G. L. c. 41, § 97D. See G. L. c. 6, § 167, 172; see also 45 C.F.R. §§ 160. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Citing CORI, the Department argues the following:

Captain Ronald A. Young SPR23/2375 Page 4 October 20, 2023 Both of the records that have been withheld contain information considered to be CORI. Outlining or revealing information, even in the simplest or most modest of ways, could and would make it easy to identify people involved even at the peripheral level as well as those accused. Limited release of records as it works through Exemption (f), outlined below, speak to this very issue. It is for much of the same reason that Grand Jury Minutes and related materials are exempt from disclosure. Flatly put, these records include witness statements, descriptions of events, and fact patterns that would make it very easy to identify complainants, victims and witnesses… Based on the Department’s response, I find that the Department has not met its burden to redact the requested records under CORI. Specifically, it is not clear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Department must clarify this. The statute, 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, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B ... G. L. c. 41, § 97D. Citing G. L. c. 41, § 97D, the Department argues the following: Both of these records are exempt from disclosure pursuant to G. L. c. 41, § 97D …This information is protected to avoid the identification of people reporting certain events to law enforcement. The legislature created this law to protect all people from even an inadvertent disclosure of their identity to keep them safe, to encourage them to cooperate in the future, and to not be afraid to report incidents whether they are of criminal nature or not. Based on the Department’s response, it is unclear how the records relating to an internal affairs investigation fall within the type of records contemplated in G. L. c. 41 § 97D. The Department merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. Further, based on the Department’s response, it is unclear what type of information contained in the records it is withholding from disclosure. G. L. c. 66, §

Captain Ronald A. Young SPR23/2375 Page 5 October 20, 2023 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 . . .”). Therefore, the Department must identify what information it is withholding under G. L. c. 41, § 97D. Health Insurance Portability and Accountability Act (HIPAA) The applicable regulation is part of the implementation of HIPAA, and provides in relevant part: Definitions. . . . Covered entity means: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. . . . Health plan means an individual or group plan that provides, or pays the cost of, medical care. . . . (2) Protected health information excludes individually identifiable health information: . . . (iii) In employment records held by a covered entity in its role as employer 45 C.F.R. § 160.103. Citing HIPAA, the Department states “HIPAA information is contained in these files. It is protected information and will be withheld unless a production order is received.” HIPAA sets forth rules and regulations for the use and disclosure of protected health information by covered entities. However, the Privacy Rule in HIPAA does not apply to employers when they are acting in their roles as either employers or as group plan sponsors. See 45 C.F.R. § 160.103(2)(iii); see also 67 Fed. Reg. 53, 192 (August 14, 2002) (the plan sponsor is not the covered entity under HIPAA, thus, information will not be protected when held by a plan sponsor). Consequently, the Privacy Rule does not preclude employers, acting as employers or plan sponsors, from disclosing information contained in “employment records,” such as identity of the employed individual, the individual’s choice of plan, or whether the individual is an active employee or retired. See 45 C.F.R. § 160.103(2)(iii); see also 67 Fed. Reg. 53, 192. The Department must clarify how it is a covered entity as defined by HIPAA.

Captain Ronald A. Young SPR23/2375 Page 6 October 20, 2023 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 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department argues the following: Limited release of records as it works through Exemption (f), outlined below, speak to this very issue. It is for much of the same reason that Grand Jury Minutes and related materials are exempt from disclosure. Flatly put, these records include witness statements, descriptions of events, and fact patterns that would make it very easy to identify complainants, victims and witnesses…

Captain Ronald A. Young SPR23/2375 Page 7 October 20, 2023 To the extent that the redacted portions of the records contain personally identifying information of voluntary witnesses, I find the Department may permissibly redact such portions from disclosure. 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond