Teddy Tauscher v. Methuen, City of - Police Department (SPR 20241860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1860 Brittany Getchell Methuen Police Department Records Access Officer 90 Hampshire Street Methuen, MA 01844 Dear Ms. Getchell: I have received the petition of Teddy Tauscher, of the Eagle Tribune, appealing the response of the Methuen 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 June 17, 2024, Mr. Tauscher requested the following: [1.] [C]opies of all 911 calls associated with the shooting at ... Lindberg Ave. on the morning of Sunday, June 16. [2.] [A]ll body camera footage gathered during the incident. The Department responded on June 26, 2024. Unsatisfied with the Department’s response, Mr. Tauscher petitioned this office, and this appeal, SPR24/1860, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on July 1, 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 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

Brittany Getchell SPR24/1860 Page 2 July 10, 2024 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 June 26th and July 1st Responses In its June 26, 2024 and July 1, 2024 responses, the Department cites Exemptions (c) and (f) of the Public Records Law for withholding responsive records. 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). 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is 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). 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).

Brittany Getchell SPR24/1860 Page 3 July 10, 2024 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 July 1st response, under Exemption (c), the Department argues the following: Given the severity of the injuries sustained, officers were performing emergency lifesaving efforts. The victim’s faces and extensive injuries were captured on the body-worn cameras (“BWC”) of responding officers. Under the Exemption (c) balancing test, the MPD reasonably believes that public dissemination opens these victims of this violent crime to personal embarrassment and prospective retaliation and would be an unwarranted invasion of their privacy. Based on the Department’s response, although the records may contain medical information related to a specifically named individual, it is unclear how the responsive records, in their entirety, constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. 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. Additionally, based on the Department’s response, it is unclear whether the responsive records may be “related to a law enforcement misconduct investigation.” G. L. c. 4, § 7(26)(c). Please note that the amended language of Exemption (c) does not permit its application to records “related to a law enforcement misconduct investigation.” 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

Brittany Getchell SPR24/1860 Page 4 July 10, 2024 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18 (1979); 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the 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 [or her] career.” Id. at 438. In its June 26th response, under Exemption (f), the Department argues the following: This incident is an ongoing investigation and our department is diligently working to identify all parties involved in the shooting. In accordance with Massachusetts General Law c. 4 §. 7(26) (f), the Investigatory Exemption, the recordings you requested are exempt from Public Records Law and therefore cannot be released at this time. As the information within these records are relative to an active investigation, disclosure of which could prejudice this case and the possibility of effective law enforcement efforts. Additionally, in its July 1st response, the Department argues the following: [T]he footage contains confidential law enforcement information relating to an active shooting investigation. At this time, MPD officers are diligently working to identify all parties involved in this case. Dissemination of the requested footage could prejudice this case and the possibly of effective law enforcement efforts by potentially alerting suspects to the activities and currently non-public knowledge of investigative officials. Confidential investigative techniques are imperative to the investigatory process; therefore, disclosure would not be in the public interest. Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See G. L. c. 66, § 10(a); 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).

Brittany Getchell SPR24/1860 Page 5 July 10, 2024 Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold or redact under Exemptions (c) and (f). 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”). Conclusion Accordingly, the Department is ordered to provide Mr. Tauscher 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: Teddy Tauscher