Emma Rindlisbacher v. Plymouth County District Attorney's Office (SPR 20240527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2024 SPR24/0527 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 Appeals The requested records were the subject of prior appeals. See SPR23/3012 Determination of the Supervisor of Records (December 28, 2023) and SPR24/0181 Determination of the Supervisor of Records (February 5, 2024). In my February 5th determination, I found that it was unclear how the recording, in its entirety, can be withheld under Exemptions (c) and (f) of the Public Records Law. The Office responded on February 15, 2024. Unsatisfied with the response, Ms. Rindlisbacher petitioned this office and this appeal, SPR24/0527, 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. SPR24/0527 Page 2 March 4, 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 February 15th Response In its February 15, 2024 response, the Office stated that segregable portions of the body cam footage can be disclosed and cited Exemptions (c) and (f) of the Public Records Law in support of the redactions. 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

Kristin Freeman, Esq. SPR24/0527 Page 3 March 4, 2024 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). 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 only people who have access to this unredacted footage are the defendant’s attorney, the Commonwealth and the Lakeville Police Department. No one from the public has access to this portion of the footage. If it were to be released, it would constitute an unwarranted invasion of the defendant’s and the police officer’s personal privacy. M.G.L. c. 4 s. 7(26)(c). It contains graphic audio and video and intimate details of a highly personal nature. Disclosure would certainly result in harm and personal embarrassment to an individual of normal sensibilities. See PETA, 477 Mass. at 292. There is no public interest that would outweigh the seriousness of the invasion of privacy were this footage to be disclosed. The image of the defendant on the ground has been blurred out for the entirety of the video in accordance with Exemption (c) ... the defendant, whose name is known, has gunshot wound injuries which are visible and bleeding...” The Office also states, “[i]f footage were released, it would be an invasion of the defendant’s privacy as the public has no right to see or hear the defendant while he is injured and being attended to or to hear about his mental state. PETA, 477 Mass. at 292.” 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

Kristin Freeman, Esq. SPR24/0527 Page 4 March 4, 2024 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 February 15th response, the Office explained, The redacted segments of the body cam footage are evidence because it is a recorded statement of a witness. In the redacted segments, the police officer and the defendant make statements. These segments deserve protection, not only because the defendant’s case is still pending, but because the investigation by the Plymouth County District Attorney’s Office regarding the officer’s action is pending as well. 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 Moreover, the disclosure of this video could not only compromise the prosecution of this case but could also prejudice the defendant’s right to a fair trial. See Newspapers of New England, 403 Mass. at 637 (defendant’s Sixth Amendment right to a fair trial is ‘invaded by disclosure’ of investigative material while the criminal prosecution is pending ... In camera inspection In order to facilitate a determination as to the applicability of the Office’s claims to redact portions of the recording pursuant to Exemptions (c) and (f) of the Public Records Law, the Office must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the recording, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4).

Kristin Freeman, Esq. SPR24/0527 Page 5 March 4, 2024 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 Office is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher