Kevin Berner v. Braintree, Town of - Town Clerk (SPR 20241124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1124 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.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0498 Determination of the Supervisor of Records (February 28, 2024). In my February 28th determination, I found that the Town did not meet its burden to withhold the records, in their entirety, under Exemptions (a), (c), and (f). In addition, I directed the Town to clarify the records it was withholding. The Town responded on March 27, 2024. Unsatisfied with the Town’s response, Mr. Berner petitioned this office and this appeal, SPR24/1124, 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

Crystal Huff, Esq. SPR24/1124 Page 2 April 30, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. The Town’s March 27th Response In its March 27, 2024 response, the Town advised that portions of the transcript were redacted pursuant to Exemption (c) of the Public Records Law and other portions of the transcript were withheld, in their entirety, under Exemption (f) of the Public Records Law. In its January 17, 2024 prior response, the Town cited Exemption (a) of the Public Records Law and specifically, G. L. c. 41, § 97D. See SPR24/0498. The Town in its current response incorporated by reference the January 17th response. 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

Crystal Huff, Esq. SPR24/1124 Page 3 April 30, 2024 access to the listed individuals or entities. In its January 17th response, the Town indicated, “[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.” G. L. c. 41, § 97D 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. 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.

Crystal Huff, Esq. SPR24/1124 Page 4 April 30, 2024 Under Exemption (c), the Town asserts the following: [i]n this regard, portions of the transcripts that contain highly intimate details and are akin to the categories of information the Courts have already determined are not subject to public disclosure have been redacted and the disclosure of such information satisfies the first and second prongs of the PETA test given the specific highly personalized details of the transcripts. Additionally, this investigative information is not available from any other sources, as the transcripts exist solely in the custody of the Town and the investigator who issued the CIC report, as part of CIC’s investigation file. In carefully balancing these interests, the Town has concluded that it is appropriate to redact certain limited information from the enclosed records under Exemption (c) and is providing the transcripts requested with such redactions. After carefully balancing the various interests and factors discussed above, it is the Town’s position that the individual privacy rights involved in this investigatory matter, including named third-parties, support the redaction of certain information from the enclosed documents in response to this public records request. 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

Crystal Huff, Esq. SPR24/1124 Page 5 April 30, 2024 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. Under Exemption (f), the Town asserted: In addition to protecting records of ongoing investigations, Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The name, address and identifying details of a victim, voluntary complainant or witness may therefore be withheld from disclosure permanently. Reinstein, 378 Mass. at 290. The Supreme Judicial Court of Massachusetts has ruled that, “[t]he 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 career.” In camera inspection In order to facilitate a determination as to the applicability of the Town’s claims to redact and withhold the responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law, the Town must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. 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).

Crystal Huff, Esq. SPR24/1124 Page 6 April 30, 2024 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 Town 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: Kevin Berner