Joseph F. Hennessey v. Worcester, City of - Police Department (SPR 20242139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2139 Janice E. Thompson, Esq. Assistant City Solicitor Law Department City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Joseph F. Hennessey, Esq. appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2024, Attorney Hennessey requested the following records: [1] All body worn camera footage from all officers that responded and participated in the stop and arrest of [an identified individual], et al. [2] All reports, videos, photographs, search warrant application, search warrant affidavits, search warrant return of the search of [an identified individual] motor vehicle Mass. Registration ... black Lexus on July 15, 2024 to July 18, 2024. [3] All inventory reports, inventory photographs, damage reports in the above referenced matter. [4] All police reports, internal memos regarding the stop and search of [an identified individual’s] motor vehicle. [5] Tow log records of the tow Mass. Registration ... belonging to [an identified individual][.] [6] All reports, internal memo, or any record documenting damage to [an identified individual’s] motor vehicle caused by any Worcester Police Officer from 7/15/24 to 7/18/24[.] [7] All email and text communications between Direnzo Towing and any Worcester Police Officer regarding Mass. Registration ... from 7/15/24 to 7/18/24 [8] All orders from the Worcester Police Department to Direnzo Towing not to release Mass. Registration ... to [an identified individual] or any other person from 7/15/24 to 7/18/24[.] 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

Janice E. Thompson, Esq. SPR24/2139 Page 2 August 8, 2024 The City responded on July 25, 2024. Unsatisfied with the City’s response, Attorney Hennessey petitioned this office and this appeal, SPR24/2139, 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). 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 July 25th response In its July 25, 2024 response, the City cited Exemptions (a) and (c) of the Public Records Law to withhold the requested records. Current appeal In his appeal Attorney Hennessey asserts, “[t]he City asserts an exemption here that the records pertain to a juvenile arrest. Though we would agree that police reports and body worn cameras of the stop would apply, the remaining records are not subject to the exemption and should be produced. This agency should review each and every request individually to determine if any such pertains to the records of a juvenile. First, [the identified individual] is not a juvenile. [An identified individual] is 28 years old and has lived in Worcester his entire life.” 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).

Janice E. Thompson, Esq. SPR24/2139 Page 3 August 8, 2024 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 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 cited G. L. c. 41, § 98F, indicating that the records are exempt from disclosure. G. L. c. 41, § 98F provides in pertinent part: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. G. L. c. 41, § 98F. In its response, the City advised, “[r]ecords pertaining to the arrest of juveniles have been withheld pursuant to M.G.L. c. 4 § 7 cl. 26 (a) and (c). M.G.L. c. 41 § 98F requires that “(iv) any entry concerning the arrest of a person who has not yet reached 18 years of age” shall not be a

Janice E. Thompson, Esq. SPR24/2139 Page 4 August 8, 2024 public record and shall not be disclosed to the public. These records contain arrest records of individuals under the age of 18.” 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 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 asserts, “[a] governmental entity is required to examine the privacy interest at issue in light of the context of the disclosure. M.G.L. c. 119 §60A makes clear that a significant privacy interest attaches to records associated with arrests youthful offenders [sic]. The City has determined that a juvenile’s substantial privacy interest outweighs the public interest in disclosure. Responsive records pertaining to the arrest of juveniles have been withheld accordingly.” Based upon the City’s response and Attorney Hennessey’s appeal that his client is not a juvenile, it is unclear as to how all the requested records are restricted under G. L. c. 41, § 98F, as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law. The City must clarify. Further, Based on the City’s response, it is unclear what records the City possesses that it withheld under Exemptions (a) and (c). To deny access to a record under the Public Records

Janice E. Thompson, Esq. SPR24/2139 Page 5 August 8, 2024 Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify the record(s) it has in its possession that it withheld under Exemptions (a) and (c). Conclusion Accordingly, the City is ordered to provide Attorney Hennessey 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. Attorney Hennessey may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph F. Hennessey, Esq.