Kevin Berner v. Braintree, Town of - Town Solicitor (SPR 20240498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2024 SPR24/0498 Crystal Huff, Esq. Town Solicitor Town of Braintree One JFK Memorial Drive Braintree, MA 02184 Dear Attorney Huff: I have received the petition of Kevin Berner appealing the response of the Town of Braintree (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 3, 2024, Mr. Berner requested, “... interview transcripts that accompany Comprehensive Investigations and Consulting’s (CIC) independent review of the criminal investigation that the Braintree Police Department conducted relative to a July, 2023 incident involving minors (Incident report 22-015380). We expect that these interview transcripts were received by the Town of Braintree between November 27, 2023 and December 6, 2023.” The Town responded on January 17, 2024. Unsatisfied with the response, Mr. Berner petitioned this office and this appeal, SPR24/0498, 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). 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

Crystal Huff, Esq. SPR24/0498 Page 2 February 28, 2024 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 Town’s January 17th Response In its January 17, 2024 response, the Town denied the request for the records as being exempt from production pursuant to Exemptions (a), (c) and (f) of the Public Records Law. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Town cited G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D.

Crystal Huff, Esq. SPR24/0498 Page 3 February 28, 2024 In its response, the Town advised, “[h]ere M.G.L. c. 41 s. 97D (materials relating to an allegation of sexual assault are exempt from disclosure Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2008)) and M.G.L. c. 66 s. 10B apply and prohibit production of the requested records.” Based upon the Town’s response, it is unclear how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). The Town must clarify. 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 Town asserts, “[t]he records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains personal identifying information, and includes information of a highly personal nature, and the privacy interests involved outweigh the public interests in the disclosure of that information. Moreover, here the entire record is withheld as even if the names, addresses and other information are redacted, the requestor will know with certainty to whom this particular record pertains to.”

Crystal Huff, Esq. SPR24/0498 Page 4 February 28, 2024 Based on the Town’s response, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Town did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. 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. 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 response, the Town asserted: ... the exemption applies to the identity of voluntary complainants and witnesses.

Crystal Huff, Esq. SPR24/0498 Page 5 February 28, 2024 As stated by the Supervisor of Records, “[a]n investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979).” See SPR17/408 Determination of the Supervisor of Records (April 12, 2017) ... Production of the interview transcripts in this instance would be contrary to the stated goal of Exemption (f). Here the entire record is withheld as even if the names and addresses are redacted, the requestor will know with certainty to whom this particular record pertains to. Disclosure of these materials in response to a public records request would have an adverse impact on future investigations and, as a result, production would not be in the public interest. To the extent that the records contain identifying information of voluntary witnesses and complainants, the Town may permissibly withhold such portions from disclosure. However, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Town’s response whether the records contain any confidential investigative techniques. The Town did not demonstrate how disclosure of any segregable portion of the responsive records “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). Further, based on the Town’s response, it is unclear what type of records it possesses that it is withholding from disclosure pursuant to Exemptions (a), (c) and (f) of the Public Records Law. G. L. c. 66, § 10(b)(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 . . .”). Therefore, the Town must identify the type of records it has in its possession that it is withholding. Conclusion Accordingly, the Town is ordered to provide Mr. Berner 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. Mr. Berner may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Crystal Huff, Esq. SPR24/0498 Page 6 February 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kevin Berner