Emma Rindlisbacher v. Plymouth County District Attorney's Office (SPR 20240181)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2024 SPR24/0181 Kristin Freeman, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Freeman: I have received the petition of Emma Rindlisbacher, of Nemasket Week, appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2023, Ms. Rindlisbacher requested, “... body camera footage from [an identified] officer that begins at the end of the body camera footage already released by the Lakeville police department and continues for thirty additional minutes” relating to an officer shooting. Subsequently Ms. Rindlisbacher modified her request “to increase the length of time of the video footage from 30 minutes to three hours.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/3012 Determination of the Supervisor of Records (December 28, 2023). In my December 28th determination, I found that it was unclear how the recording, in its entirety, can be withheld under Exemption (f). The Office responded on January 18, 2024. Unsatisfied with the response, Ms. Rindlisbacher petitioned this office and this appeal, SPR24/0181, 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

Kristin Freeman, Esq. SPR24/0181 Page 2 February 5, 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(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. Att’y 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. The Office’s January 18th Response In its January 18, 2024 response, the Office cited Exemptions (c) and (f) of the Public Records Law to withhold the requested recording in its entirety. 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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

Kristin Freeman, Esq. SPR24/0181 Page 3 February 5, 2024 Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). 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. In its response, the Office asserts, “[t]he remainder of the body cam footage contains information which, if disclosed, would constitute an unwarranted invasion of personal privacy.” The Office also asserted, “[t]he footage that followed the first 2 minutes and 15 seconds, and what Ms. Rindlisbacher requested, contains medical and private information which depicts intimate details of a highly personal nature. This was a highly charged event and, most importantly, what the officer perceived to be a life-threatening situation. The aftermath of that was in the remaining footage. It depicts the Lakeville Officer’s emotional and physical reaction to the incident, statements from the Lakeville Officer as well as private and intimate conversations between the Lakeville Officer and officers on scene as well as images of the defendant on the ground with gunshot wounds and exposed buttocks. The privacy aspect outweighs the public interest as it is of a medical and private nature for the defendant and the Lakeville Officer which, if released, could cause personal harm and embarrassment.” To the extent that the recoding contains medicinal information of a specifically named individual, I find the Office may withhold such portions from disclosure under Exemption (c), However, it is unclear how the entire body cam footage contains 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 available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide sufficient 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. Additionally, the Office must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). As a result, I find that the Office did not meet its burden of specificity to withhold the requested record under Exemption (c). 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

Kristin Freeman, Esq. SPR24/0181 Page 4 February 5, 2024 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 289-90. 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. In its January 18th response, the Office explained, The entirety of the body cam footage of the Lakeville Officer is a matter of evidence which properly deserves protection not only where the defendant’s criminal case is pending, but because the investigation into the officer involved shooting remains open. Although the portion that was released shows the actual incident itself, the remaining portion, delves deeper into witness statements, images of the defendant on the ground following the shooting, the emotional and physical reaction of the Lakeville Officer and conversations of a highly personal nature between fellow officers. This exemption also applies to the defendant’s statements and the officer’s statements that are contained in the footage. The use of force investigation with regards to both officers is active and open. The officer, if charged, has the right to a fair trial and the disclosure of the footage could affect that. The prevention of

Kristin Freeman, Esq. SPR24/0181 Page 5 February 5, 2024 the disclosure of these statements prevents a rush to judgment and is vital to the integrity of the investigation. Among the public policy concerns underlying this exemption are “the encouragement of individual citizens to come forward and speak freely with police concerning maters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses, and interim conclusions.” Bougas, 371 Mass. at 62. At the time of the recording, it was the officer who was recounting what happened. If he were not able to speak freely this would prejudice the possibility of effective law enforcement and, perhaps, discourage other officers from speaking candidly as well. Moreover, if the footage were released it could be viewed and possibly impact potential jurors. The pre-trial publicity of the remaining footage may make them bias toward the defendant or the Lakeville Officer. If that happens, it would affect the defendant’s, and, if charged, the officer’s right to a fair trial. Although Exemption (f) would permit the redaction of identifying information of a complainants and voluntary witnesses, the Office has not demonstrated how the witnesses can be directly or indirectly identified even with redactions. Further, based on the Office’s response, it is unclear how the body cam footage in its entirety can be withheld under Exemption (f). It is uncertain from the Office’s response whether the body cam footage contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Further, the Office did not demonstrate how disclosure of any segregable portion of the body cam footage “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required under Exemption (f). 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). The Office must clarify whether segregable portions of the body cam footage can be disclosed. Conclusion Accordingly, the Office is ordered to provide Ms. Rindlisbacher 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. Ms. Rindlisbacher may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Kristin Freeman, Esq. SPR24/0181 Page 6 February 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher