Christopher Nesbitt v. Methuen, City of - Police Department (SPR 20232381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2023 SPR23/2381 Brittany Getchell Court Clerk Methuen Records Department 90 Hampshire Street Methuen, MA 01844 Dear Ms. Getchell: I have received the petition of Christopher Nesbitt appealing the response of the Methuen 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 September 18, 2023, Mr. Nesbitt requested the following regarding a named business: [1] ... the CAD dispatch info, [t]he phone call audio, any police reports generated, and all body cam footage from this call [2] … any CAD dispatch info and reports generated for calls to [a named location] from July 19, 2023 - September 18, 2023. On September 19, 2023, Mr. Nesbitt modified his requested to include any reports and police body camera from the business from September 19, 2023. On September 20, 2023, the Department responded and provided responsive records that included dispatch logs and incident reports. The Department indicated that it would provide further responsive body camera footage. On October 3, 2023, the Department provided the responsive body camera footage with redactions. On October 6, 2023, the Department explained that the redactions were made pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s responses, Mr. Nesbitt petitioned this office and this appeal, SPR23/2381, was opened as a result. While this appeal was pending, the Department provided a supplemental response on October 19, 2023. 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 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

Brittney Getchell SPR23/2381 Page 2 October 23, 2023 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 town 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(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). The Department’s October 6th and October 19th responses In its October 6, 2023 response, the Department cited Exemption (c) of the Public Records Law to redact the requested records and stated the following: . . . the decision has been made to blur the faces of the individuals involved in these incidents. As you have informed us in your previous emails, you request the body camera footage to publish on your public website and facebook page, without prior permission from the parties involved. The individuals involved in these incidents have a reasonable expectation of privacy while interacting with the police officers on scene, therefore their faces, which also are personally identifying, have been redacted in the footage pursuant to Massachusetts General Law c. 4 §. 7(26) (c) – Privacy Exemption. Additionally, these individuals may reasonably fear retaliation from [a named company] for their complaints, further strengthening our basis for the redactions. In a further response provided to this office on October 19, 2023, the Department stated the following: Under Exemption (c)’s balancing test, there is no public interest advanced by publicly revealing the face of these persons. Rather, the fact of the towing, combined with police activity arising from complaints about towing-evidenced by the redacted BWC footage, which the MPD has already produced-illustrate the interest advanced by the subject records. Publicly revealing the faces [sic] the persons depicted does not advance the public interest. Indeed, publicly revealing the individuals’ faces may hinder the public interest. Under the balancing test, the MPD reasonably believes that such public dissemination opens these person[s] to personal embarrassment and, for complaints depicts, prospective retaliation for complaints about the tow service. Indeed, the public interest is hindered under such exposure because complainants may be disinclined to complain about this tow service if the BWC footage is subsequently relates publicly in unredacted form.

Brittney Getchell SPR23/2381 Page 3 October 23, 2023 Current Appeal In his current appeal, Mr. Nesbitt claimed that the Department did not meet its burden to redact the responsive video footage. Based upon review of Mr. Nesbitt’s appeal this determination is limited to Item 1 of Mr. Nesbitt’s request. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). 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. 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). 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. Based on the Department’s responses, it is unclear how the records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is

Brittney Getchell SPR23/2381 Page 4 October 23, 2023 available from other sources. PETA, 477 Mass. at 292. The Department must clarify this matter. As a result, I find that the Department did not satisfy its burden in redacting these records pursuant to Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Nesbitt with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Christopher Nesbitt