Blue POV v. Lynn, City of - Police Department (SPR 20240059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2024 SPR24/0059 Paul A. Cotter Administrative Services Records Division Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Blue POV appealing the response of the Lynn 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 24, 2023, the requestor sought records related to a specific arrest that occurred on February 4, 2022. Previous appeals This request was the subject of previous appeals. See SPR23/2294 Determination of the Supervisor of Records (October 10, 2023), SPR23/2459 Determination of the Supervisor of Records (October 30, 2023) and SPR23/2830 Determination of the Supervisor of Records (December 6, 2023). In the December 6th determination, I ordered the Department to clarify its claims under Exemptions (a) and (f) of the Public Records Law. The Department provided a response on December 19, 2023, which included a fee estimate. Unsatisfied with the Department’s response, and objecting to the fees, the requestor petitioned this office and this appeal, SPR24/0059, 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). 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

Paul A. Cotter SPR24/0059 Page 2 January 22, 2024 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 December 19th response In its December 19, 2023 response, the Department provides additional information in support of its redacting of the records under the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law. The Department also cites Exemption (c) to support the redactions. 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.

Paul A. Cotter SPR24/0059 Page 3 January 22, 2024 Under Exemption (a), the Department cites the CORI Act to redact the requested records. 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 states the following: To reiterate, the police report as well as the officers BWC video(s) for this particular matter does in-fact identify a specific individual over the age of 18 that is identifiable in the unredacted report and body camera video. Both the recording(s) as well as the officers’ arrest report do in fact relate to both the nature of a criminal charge, as well as an arrest for an offense which is punishable by incarceration. Finally, the criminal proceedings were not dismissed before arraignment. This [sic], all of the statutory pre-requisites have been met to allow the redaction of the report, if not a complete withholding of the report. While it remains the position of the Lynn Police Department that the entire report can be withheld pursuant to M.G.L. c. 6, sections (167) through (172), the Lynn Police Department is producing a redacted version of the police report that eliminates any portions of said report protected by the CORI statute.

Paul A. Cotter SPR24/0059 Page 4 January 22, 2024 Based on the Department’s response, I find the Department has not met its burden to redact the responsive records under CORI. Specifically, the Department has not demonstrated that the redacted information constitutes “information recorded in criminal proceedings” as defined in G. L. c. 6, § 167. The Department must clarify. 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. Citing Exemption (c), the Department states the following: It is further the position of the Lynn Police Department that the reacted [sic] portions of the subject records are exempt under the so-called privacy exemption

Paul A. Cotter SPR24/0059 Page 5 January 22, 2024 of the Massachusetts public records law. The prospective invasion of individual privacy is to be weighed against the public interest in disclosure; where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest. The requestor will be unable to point to any public interest in the release of records describing or depicting criminal conduct by a private citizen who was not a public official at the time of this incident. This sharply contrasts to the facts in Boston Globe Media Partners, LLC which involved alleged criminal conduct of police officers and a judge. In deciding whether to invoke the personal privacy exemption for public records requests, law enforcement agencies should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public, against the risk that disclosure would unfairly result in adverse collateral consequences to the accused. Based on the Department’s response, the Department has not demonstrated that disclosure of the redacted information would result in personal embarrassment to an individual of normal sensibilities or that this information constitutes intimate details of a highly personal nature. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. The Department must clarify. Additionally, it is unclear what portions of the records the Department is withholding from disclosure under Exemption (c). Please be advised, to deny access to a portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the portions of the records it has in its possession that it is withholding under Exemption (c). Fees - Municipalities 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. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search

Paul A. Cotter SPR24/0059 Page 6 January 22, 2024 for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s December 19th response In its December 19, 2023 response, the Department provides a fee estimate of $200.00 for 8 hours of work at $25.00 an hour to “redact audio and visual portions of all of the body camera footage.” The Department states the following: With respect to the body camera footage, the Lynn Police Department will produce a redacted copy of the same upon payment of a good faith estimate for the cost to produce a redacted version of the video. The Supervisor of Public Records has previously ruled that the Department could not impose a charge greater than twenty-five ($25.00) dollars per hour to produce the redacted videos. Several officers responded to the scene and much, if not most, of the videos (a) concern an identifiable individual; (b) relate to the nature of a criminal charge or an arrest; (c) was recorded in criminal proceedings that were not dismissed before arraignment; (d) concern a person who has attained the age of 18 years old and (e) concern an offense which is punishable by incarceration. I have been advised by our video evidence unit that to redact audio and visual portions of all of the body camera footage, approximately ten hours of time will be required. Recognizing that the first two hours of search and segregation time are not to be passed along to the requestor, the Lynn Police Department is requesting a payment of two hundred ($200.00) dollars prior to commencing such an endeavor. The actual cost that the Department will incur to produce redacted videos will far exceed the amount of the request for reimbursement. However, as noted above, the Supervisor has limited any hourly fee to twenty-five ($25.00) dollars per hour. Based on the Department’s response, it remains unclear how the Department requires the number of hours described above to redact the responsive records. The Department must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, §

Paul A. Cotter SPR24/0059 Page 7 January 22, 2024 10(d)(iv) (requiring the amount of the fee be reasonable). Further, it is unclear how many hours of footage exist and how many minutes per video it will take to redact the responsive records. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide the requestor 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: Blue POV