Jennifer Collins v. Amesbury, City of - Police Department (SPR 20241577)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2024 SPR24/1577 Janet L. Moyer Records Access Officer Amesbury Police Department 19 School Street Amesbury, MA 01913 Dear Ms. Moyer: I have received the petition of Jennifer Collins appealing the response of the Amesbury 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 May 2, 2024, Ms. Collins requested, “the video and audio from the police cam and police car cam in regards to [a named individual], who was charged with disorderly conduct.” The Department responded on May 6, 2024 and May 24, 2024, claiming the records are exempt from disclosure under the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), and Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s responses, Ms. Collins appealed, and this case, SPR24/1577, was opened as a result. In a letter to this office on May 24, 2024, the Department reiterated its claims for withholding the responsive records. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Collins status as a relative of the person named in the report will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Janet L. Moyer SPR24/1577 Page 2 June 7, 2024 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). 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 Department’s May 6th and May 24th Responses In its May 6, 2024 and May 24, 2024 responses, the Department cites Exemption (a), CORI, and Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c). 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.”

Janet L. Moyer SPR24/1577 Page 3 June 7, 2024 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. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under Exemption (a) and CORI, the Department states that the “material (Body Worn

Janet L. Moyer SPR24/1577 Page 4 June 7, 2024 Camera …) requested is exempt from disclosure under [G. L. c. 4, § 7(26)(a)]. ... The Body Worn Camera video is part of the Criminal Proceedings against the [named individual]. The Amesbury Police Department wishes to avoid disclosure of the video footage as it may taint the deliberative process for the criminal proceedings underway… The requestor may contact the District Attorney’s Office, through the discovery phase, and obtain the video and the other arrest reports.” Based on the Department’s response, it is unclear how the responsive record may be withheld under Exemption (a) and CORI. Specifically, it is not clear how the withheld record constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Department must clarify this. 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. 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 response, under Exemption (c), the Department argues that “the records responsive to her request… contain unresolved allegations regarding particular individuals, in this instance minors. Given that she is aware of the allegations made and the identity of the minor against whom the allegations were made, there is no way to redact the documents prior to public release,

Janet L. Moyer SPR24/1577 Page 5 June 7, 2024 sufficient to protect these privacy interests.” Based on the Department’s response, it is unclear how the responsive record constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Collins 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. Sincerely, Manza Arthur Supervisor of Records cc: Jennifer Collins