Ben Berke v. Fall River, City of - Office of the Corporation Counsel (SPR 20241844)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2024 SPR24/1844 Kenneth E. Fredette, Esq. Assistant Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Fredette: I have received the petition of Ben Berke, of 89.3 FM, appealing the response of the City of Fall River (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2024, Mr. Berke requested the following: [1.] All Personnel Early Warning System Reviews for [a named individual] [2.] Any reports filed by [two named] Officers . . . regarding the arrest of [another individual] on 12/21/20 or the subsequent altercation between [two individuals] that occurred during the booking process. Previous Appeals This request was the subject of previous appeals. See SPR24/0656 Determination of the Supervisor of Records (March 15, 2024) and SPR24/1558 Determination of the Supervisor of Records (June 6, 2024). In my June 6th determination, I ordered the City to clarify its claims under Exemption (c) for withholding records responsive to Part 1 of the request. Subsequently, the City responded on June 10, 2024. Unsatisfied with the City’s response, Mr. Berke petitioned this office, and this appeal, SPR24/1844, 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

Kenneth E. Fredette, Esq. SPR24/1844 Page 2 July 9, 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(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 City’s June 10th Response In its June 10, 2024 response, the City cites Exemptions (c) and (f) of the Public Records Law for withholding “Personnel Early Warning System Reviews.” See G. L. c. 4, § 7(26)(c), (f). 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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

Kenneth E. Fredette, Esq. SPR24/1844 Page 3 July 9, 2024 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 June 10th response, under Exemption (c), the City argues that “the early warning system reviews are not the product of a misconduct investigation and are therefore exempted from release.” Specifically, the City argues the following: An early warning system is a data-based police management tool designed to identify potential officers who may benefit from de-escalation training “before such an officer is involved in a situation that warrants formal disciplinary action.” . . . The records sought are personal to a singular officer and not produced as the result of a law enforcement misconduct investigation. Clearly these records are exempted from disclosure without further analysis necessary to determine how embarrassing they might be if revealed and what, if any, intimate details of a highly personal nature might be uncovered in disclosure. Additionally, the City argues that “the balancing of privacy interests in the requested records against the public’s interest in disclosure favors nondisclosure of the records sought.” Specifically, the City argues the following: Unlike the records sought in Mack, the Early Warning Reports were not generated through police investigation into a particular incident with a focus on determining whether laws were broken and a shooting was justified, but rather through the self-reporting of the officer use of force relevant to arrests over time. The officer was never complained of by any civilian witnessing the arrests nor of any fellow officer present when they occurred. The Early Warning Reports are officer-specific human resource evaluations triggered by the self-reporting of force used during an arrest or non-arrest incident. The evaluations conducted are likely to go well beyond the facts included in the officers’ reports and delve into personal matters wholly separate from on-the-job experiences, including prior and current family history. There should be no public interest that outweighs the officers’ right to maintain privacy of such information.

Kenneth E. Fredette, Esq. SPR24/1844 Page 4 July 9, 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 June 10th response, under Exemption (f), the City argues the following: The records at issue here will be part of an investigation that was halted when the [named individual] went to trial in Federal Court and ultimately received a conviction and jail term. Counsel has notified Mr. Berke of this process and indicated that at the end of the investigation the documents would be turned over if the City does not prevail in its argument that exemption (c) applies. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the City to withhold responsive records, the City must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records

Kenneth E. Fredette, Esq. SPR24/1844 Page 5 July 9, 2024 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 City is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Ben Berke