Jessica O'Brien v. New Bedford, City of - Office of The City Solicitor (SPR 20242017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2017 Romina Moniz Administrative Manager Central Records Access Officer City of New Bedford | Solicitors Office 133 William Street New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Jessica M. O’Brien, Esq., of Morrison Mahoney LLP, 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 April 25, 2024, Attorney O’Brien requested the following records for a slip and fall accident that occurred at a specified address in New Bedford on December 27, 2021, involving an identified individual: [1] All incident reports made or obtained by any police officers; [2] All statements and/or reports made or obtained by any police officers; [3] All statements made or obtained from any other witnesses; [4] All photographs of the premises; [5] All investigatory notes, memorandum reports, and correspondences; [6] All inquest requests; [7] All complaints and pleadings; [8] All depositions; [9] All documents referring to findings; [10] All call logs relating to the incident; and [11] All 911 turret tapes. The City responded on May 16, 2024. Unsatisfied with the City’s May 16th response, Attorney O’Brien petitioned this office and this appeal, SPR24/2017, 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 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 SPR24/2017 Page 2 July 29, 2024 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). 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 May 16th Response In its May 16, 2024 response, the City identified one responsive record and cited Exemptions (c) and (f) of the Public Records Law in support of the redactions to the responsive record. 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. 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

Romina Moniz SPR24/2017 Page 3 July 29, 2024 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, the City stated, “[f]or the current records, the redactions were made to keep confidential the information listed therein relating to specifically named individuals. This information, if disclosed, would result in personal embarrassment to an individual of normal sensibilities as the subjects in question are private citizens. The redacted information contains intimate details of a highly personal nature, as disclosure of it would allow for the opportunity of members of the public to invade the personal privacy of the individuals linked to the material. Finally, aside from the record in question, the redacted information is not available through other sources. As such, a privacy interest does exist in the redacted information. Due to the fact that the public interest in obtaining the information in question does not substantially outweigh the seriousness of any invasion of privacy, as made evident by the fact that the public at large does not stand to gain any extra insight into the records by having this private information disclosed, the balancing test necessitates that the information be redacted from the record.” 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 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

Romina Moniz SPR24/2017 Page 4 July 29, 2024 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 its response, the City stated, “[t]he Department has redacted a witness name and identifying details of witness that if released, would create a grave risk of directly or indirectly identifying the witness.” The City also stated, “[t]he redaction of this information is designed to allow the Department’s investigators to continue to provide assurance of confidentiality to private citizens so that they will speak openly about matters under investigation.” In camera inspection In order to facilitate a determination as to the applicability of the City’s claims to redact the records pursuant to Exemptions (c) and (f) of the Public Records Law, the City must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records 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 an un-redacted copy of the responsive record for in camera inspection without delay.

Romina Moniz SPR24/2017 Page 5 July 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jessica M. O’Brien, Esq.