Sue Reinert v. Cambridge, City of - Office of the City Solicitor (SPR 20240389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2024 SPR24/0389 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Sue Reinert, of CambridgeDay, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 19, 2023, Ms. Reinert requested, “...copies of the following Cambridge Police Department incident reports: 23009943-1[,] 23009965-1[,] 23009992-1.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/3125 Determination of the Supervisor of Records (January 10, 2023). The City responded on January 24, 2024. Unsatisfied with the response, Ms. Reinert petitioned this office and this appeal, SPR24/0389, 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). If there are any fees associated with a response a written, good faith estimate must be 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

Seah Levy SPR24/0389 Page 2 February 21, 2024 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 City’s January 24th Response In its January 24, 2024 response, the City identified the three incidents reports being requested as 23009943-1, 23009965-1, and 23009992-1. The City withheld two records as being exempt from production pursuant to Exemption (f) of the Public Records Law. Further the City produced incident report, 23009965-1 with redactions pursuant to Exemptions (c) and (f). 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. 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. In its response, the City asserts: “[w]ith regards to Incident Report 23009965-1, after re- review, the City is reversing its original denial of the report. Attached, please find the responsive records for this item of the request. Please note that certain information has been redacted from this report, pursuant to Exemption G. L. c. 4 § 26(7)(c) and (f) of the Public Records law, which protect the privacy of an individual, and the identity of a reporting witness.”

Seah Levy SPR24/0389 Page 3 February 21, 2024 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 289-90. In its response, the City asserted: With regards to Incident Report 23009943-1, the Requestor is seeking records that concern incident reports filed by Cambridge Police Department personnel on the date of December 19, 2023. On this date, officers were allegedly assaulted by members of a crowd protesting outside Elbit Systems in Central Square. As a result of the alleged assaults and other behavior, including overrunning metal barricades, and throwing smoke pellets and eggs at officers and property, the Cambridge Police Department opened an investigation. Before responding to the Request, the City’s Public Records Access Officer confirmed that the Cambridge Police Department investigation is ongoing. With regards to Incident Report 23009992-1, the requested records involve incident reports filed by Cambridge Police Department personnel regarding a Threat to Commit Crime, Assault, and Civil Rights violations which took place in Harvard Square, and which were perpetrated against a group peacefully protesting the Israel/Palestine conflict. This matter is currently active in the court system, as charges were sought by the Cambridge Police Department.

Seah Levy SPR24/0389 Page 4 February 21, 2024 In camera inspection In order to facilitate a determination as to the applicability of the City’s claims to redact and withhold the requested records pursuant to Exemptions (c) and (f) of the Public Records Law, the City must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Sue Reinert