Emma Rindlisbacher v. Plymouth County District Attorney's Office (SPR 20241665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2024 SPR24/1665 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 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 and In Camera Review The requested records were the subject of prior appeals and an in camera review. See SPR23/3012 Determination of the Supervisor of Records (December 28, 2023); SPR24/0181 Determination of the Supervisor of Records (February 5, 2024); and SPR24/0527 Determination of the Supervisor of Records (March 4, 2024 and May 9, 2024). In my May 9th determination, I learned that the Office was to provide a further response to Ms. Rindlisbacher. The Office responded on May 31, 2024. Unsatisfied with the response, Ms. Rindlisbacher petitioned this office and this appeal, SPR24/1665, 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. SPR24/1665 Page 2 June 14, 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. Attorney 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 May 31st response In its May 31, 2024 response, the Office reiterated its claims under Exemptions (c) and (f) of the Public Records Law to redact certain portions of the body cam footage as cited in its February 15, 2024 response. See SPR24/0527. The Office also provided analysis of the Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1 (2024) case to the requested records. Current appeal In her appeal, Ms. Rindlisbacher stated, “[i]n Mack, the court concluded that the requested items may not be withheld under the privacy exemption because the exemption does not apply to an investigation of law enforcement misconduct.” 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

Kristin Freeman, Esq. SPR24/1665 Page 3 June 14, 2024 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 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 May 31st response, the Office asserts the following: The most significant distinction between the two cases is that, in Mack, the circumstances of what happened during the shooting were in dispute. In our case there is no dispute because the shooting was captured on the officer’s body worn camera. The portion of the body worn camera footage showing the defendant approaching the officer’s cruiser up until a few seconds after the defendant is shot has been disclosed in its entirety, both audio and video. In fact, that portion of the video has been publicly disseminated by the Lakeville Police Department and remains on their webpage to this day. Unlike Mack, what she is requesting are not records that fall under the "law Enforcement misconduct investigation" carve-out to the privacy exemption. It was the immediate aftermath of the incident with statements and emotions happening in real time. There was no law enforcement misconduct investigation occurring in those moments. Moreover, any future law enforcement misconduct investigation would be focused on what led up to the shooting and the shooting itself, not images of the defendant on the ground, statements regarding his treatment and certainly not the spontaneous reaction of the officer. Thus, the privacy exemption can be used to withhold the redacted footage. The Mack case stated as follows: We need not review the judge’s application of the balancing test because all records identified by the district attorney’s office fall under the “law enforcement misconduct investigation” carve-out to the privacy exemption. Thus, the privacy exemption cannot be used to withhold these records from disclosure.

Kristin Freeman, Esq. SPR24/1665 Page 4 June 14, 2024 The district attorney’s office argues that “[w]here the shooting was deemed to be justified in this death investigation under [G. L. c. 38, § 4], and no criminal prosecution ensued, the records are not ‘law enforcement misconduct’ records at all.” Essentially, the district attorney’s office asserts that unless an investigation ends in a finding that a law enforcement officer engaged in misconduct, the carve- out to the privacy exemption does not apply. This contention of the district attorney’s office finds no support in the language of the statute. General Laws c. 4, § 7, Twenty-sixth (c), clearly and unambiguously states that the privacy exemption does not apply to an “investigation” of law enforcement misconduct. To require the investigation to end with a finding of police misconduct places the cart before the horse and runs counter to the goals of police accountability and transparency. Thus, the investigation into the shooting of the decedent in this case was a “law enforcement misconduct investigation.” Accordingly, the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each “relate[] to a law enforcement misconduct investigation” and may not be withheld under the privacy exemption. Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. at 11-12. 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

Kristin Freeman, Esq. SPR24/1665 Page 5 June 14, 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. In light of the Mack decision, I find that the Office did not meet its burden to withhold portions of the video under Exemption (c) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide a response to Ms. Rindlisbacher, in a manner consistent with the Public Records Law, its Regulations and this order within 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. Ms. Rindlisbacher may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher