Leigh Blander v. Marblehead, Town of - Police Department (SPR 20240436)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2024 SPR24/0436 Dennis King Chief of Police Marblehead Police Department 11 Gerry Street Marblehead, MA 01945 Dear Chief King: I have received the petition of Leigh Blander, of the Marblehead Current, appealing the response of the Marblehead 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 December 6, 2023, Ms. Blander requested “reports and electronic communications (email/texts) between Glover School and MPD - or related to Glover School -- from this week.” Previous Appeal and In Camera Review This request was the subject of a previous appeal and in camera review. See SPR23/3051 Determinations of the Supervisor of Records (January 4, 2024 and January 26, 2024). In my January 26th determination, following in camera review, I found that while the Department had met its burden to redact portions of the responsive incident report under Exemption (c), the Department had not met its burden to withhold the report in its entirety. Subsequently, the Department responded on February 1, 2024, providing a copy of the responsive report in redacted form, and claiming the redactions were made pursuant to Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). 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

Chief Dennis King SPR24/0436 Page 2 February 26, 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. Current Appeal In her appeal petition, Ms. Blander contends that “that the redactions may be excessive ... and there may be details in this police report that can and must be released under state law, which would reveal neither personal medical information nor the identities of witnesses or complainants.” The Department’s February 1st Response In its February 1, 2024 response, the Department provides a copy of the responsive incident report in redacted form, and cites Exemptions (c) and (f) of the Public Records Law for the redactions. See G. L. c. 4, § 7(26)(c), (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). 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). 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

Chief Dennis King SPR24/0436 Page 3 February 26, 2024 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). 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 February 1st response, under Exemption (c), the Department argues the following: The Department has redacted from the record in question the names, personal home addresses, personal telephone numbers, dates of birth, and other personal and specifically identifiable information listed therein pursuant to G.L. c. 4, § 7(26)(c). . . . The redactions were made to keep confidential the personal information belonging to individuals named therein. This information, if disclosed, would result in personal embarrassment to an individual of normal sensibilities. This information is intimate in nature, as disclosure of it would allow for the opportunity of members of the public to invade the personal privacy of the individuals linked to the materials. Finally, aside from the records in question, the redacted information is not available through other sources. As such, the Department has redacted this information from the record accordingly. As noted in my January 26th determination, the Department has met its burden to redact portions of the report 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 such

Chief Dennis King SPR24/0436 Page 4 February 26, 2024 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); 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. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. Under Exemption (f), the Department argues the following: The Department has also redacted information contained in the document pursuant to G.L. c. 4, § 7(26)(f), . . . The redacted information relates to a witness(s)/complainant(s) named in the reports. The disclosure to the public of certain identifying details relating to a witness/complainant would threaten the Department’s or other investigatory official’s ability to provide assurances of confidentiality to private citizens wishing to speak openly to investigators. This disclosure, if allowed, would compromise an agency’s investigatory efforts in the future as well as pose detrimental to the public as a whole, as it would cause citizens to be hesitant in cooperating with law enforcement for fear that their identity could be made known. For this reason, the Department has redacted said information. Based on the Department’s February 1st response, and in conjunction with the previous in camera review, I find that where the identities and identifying information of the complainants

Chief Dennis King SPR24/0436 Page 5 February 26, 2024 and civilian witnesses is inextricably intertwined with the remaining portions of the record, the Department has met its burden in redacting the record under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Blander is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Leigh Blander