Rose Katz v. New Bedford, City of - Office of The City Solicitor (SPR 20241821)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2024 SPR24/1821 Romina Moniz Central Records Access Officer City of New Bedford 450 Washington Street New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Rose Katz appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2024, Ms. Katz requested, “[a]ny and all documents associated with internal affairs case #07-1367.” The City responded on June 3, 2024, denying the request and citing Exemptions (a), (c), and (f) of the Public Records Law for withholding records. See G. L. c. 4, § 7(26)(a), (c), and (f). Unsatisfied with the City’s response, Ms. Katz appealed, and this case, SPR24/1821, was opened as a result. Status of the Requestor In her appeal petition, Ms. Katz states that, “I am the complainant in this case & I ask that any fees be waived[.]” 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). Additionally, Ms. Katz is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor of Records has no authority to order that a record custodian do so. 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

Romina Moniz SPR24/1821 Page 2 July 5, 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. Att’y 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 City’s June 3rd Response In its June 3, 2024 response, the City states that “[a]fter conducting a search of its records, the Department withholds the requested record pursuant to G. L. c. 41, § 97D, as made applicable by G.L. c. 4, § 7(26)(a).” Further, the City advised that it anticipates making redactions under Exemption (c) and Exemption (f). See M. G. L. c. 4, § 7(26) (a), (c) and (f). 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

Romina Moniz SPR24/1821 Page 3 July 5, 2024 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 City cites G. L. c. 41, § 97D, which provides in relevant 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276… G. L. c. 41, § 97D. In its June 3, 2024 response, the City asserts, “[t]he information withheld is exempt from disclosure because it is not ‘public’ pursuant to G. L. c. 41, § 97D. You note in your request that you are the ‘complainant’ however, without more, the Department is unable to determine that you fall under one of the statutorily authorized individuals listed under G.L. c. 41, § 97D.” Based on the City’s June 3rd response, it is unclear what records the City intends to withhold from disclosure. See G. L. c. 66, § 10(b)(iv) (a 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”); see also 950 C.M.R. 32.06(3)(c)(4). Further, it is uncertain how the withheld record falls within the type of records contemplated under G. L. c. 41, § 97D. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. See G. L. c. 66, § 10(b)(iv). The City must clarify these matters.

Romina Moniz SPR24/1821 Page 4 July 5, 2024 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. Under Exemption (c), in its June 3rd response, the City states, “redactions are anticipated to keep confidential the personal information belonging to the private individuals that may be named therein. This information, if disclosed, would result in personal embarrassment to an individual of normal sensibilities. This information is intimate in nature, as disclosure of it to members of the public would allow for the opportunity of said members to invade the personal privacy of the named individuals. Finally, aside from the record in question, the anticipated redacted information is not available through other sources. As such, the Department anticipates redacting this information under exemption (c).” Based on the City’s response, it is uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the City did not provide 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. PETA, 477 Mass. at 292. The City must clarify these matters.

Romina Moniz SPR24/1821 Page 5 July 5, 2024 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. In its response, the City states, “the Department anticipates redacting details relating to complainants, witnesses and sources of information. . . . A purpose justifying the application of [E]xemption (f)] is ‘. . . the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information . . .’. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The disclosure to the public of certain identifying details of complainants, witnesses, and sources of information threatens the Department’s ability to provide assurances of confidentiality to private citizens in the future wishing to speak openly to investigators.” Based on the response, it is unclear how the release of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). The City must clarify this. It is additionally uncertain why the City cannot redact identifying information from the responsive records to preserve the anonymity or confidentiality of victims or voluntary witnesses. 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). Conclusion Accordingly, the City is ordered to provide Ms. Katz with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is

Romina Moniz SPR24/1821 Page 6 July 5, 2024 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: Rose Katz