Rose Katz v. New Bedford, City of - Office of The City Solicitor (SPR 20242234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2024 SPR24/2234 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1821 Determination of the Supervisor of Records (July 5, 2024). In my July 5th Determination, I ordered the City to provide Ms. Katz with a response to her request. The City responded on July 19, 2024, denying access to the records and citing Exemptions (a), (c), and (f) of the Public Records Law for withholding records. See G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the City’s response, Ms. Katz appealed, and this case, SPR24/2234, 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). 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 SPR24/2234 Page 2 August 21, 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 July 19th Response In its July 19, 2024 response, the City states it “identified one record in its possession matching the specifications of your request: internal affairs case #07-1367 (hereinafter referred to as ‘the record,’ or ‘record at issue’). The City withholds the record pursuant to G.L.c. 41, § 97D in accordance with G.L.c. 4, § 7(26)(a) as you have not established that you fall under one of the types of authorized individuals listed under G.L. c. 41, § 97D.” Additionally, the City advised that it anticipates making redactions under Exemption (c) and Exemption (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

Romina Moniz SPR24/2234 Page 3 August 21, 2024 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. Under Exemption (a), 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 July 19, 2024 response, the City asserts, “[t]he record at issue falls within the statutory scope of G.L.c. 41, § 97D for three reasons. First, the record is an internal investigation into the facts and circumstances of an alleged report of abuse perpetrated by a family or household member as defined in G.L.c. 209A, § 1. As provided above, such reports are not public reports. G.L.c. 41, § 97D. Second, the record reiterates and summarizes confidential information contained in a 209A order. Third, the record consists of police communications with the victim regarding her report of alleged abuse by a family/household member. Therefore, to comply with the statutory requirements set forth in G.L.c. 41, § 97D, the City withholds the requested record.” Based on the City’s response, it is unclear how the record relating to an internal affairs investigation falls within the type of records contemplated under G. L. c. 41 § 97D. The City must clarify this matter.

Romina Moniz SPR24/2234 Page 4 August 21, 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), the City states the following: redactions are anticipated to keep confidential the personal information belonging to the private individuals that may be named therein (witnesses to the alleged report). This information, if disclosed, would result in personal embarrassment to an individual of normal sensibilities because investigations into family/household reports of abuse require inquiry into intensely personal, intimate matters. Disclosure of identifying information of witnesses to members of the public would therefore allow for the opportunity of said members to invade the personal privacy of the named witnesses. Courts of the Commonwealth have found privacy concerns of victims of abuse, witnesses, and family members are significant. See e.g., Roman Catholic Bishop Springfield v. Travelers Cas. And Sur. Co., 23 Mass. L. Rptr. 532; 2008 WL 650392 (Jan. 7, 2008) (Not Reported in N.E.2d); Victim Bill of Rights G.L.c. 258B. Finally, aside from the record in question, the anticipated redacted information is not available through other sources. Therefore, in balancing the public’s interest with the privacy interests at stake, the privacy

Romina Moniz SPR24/2234 Page 5 August 21, 2024 interest of named witnesses prevails. The Mack case states as follows: We need not review the judge’s application of the balancing test because all records identified by the district attorney’s office fall under the “law enforcement misconduct investigation” carve-out to the privacy exemption. Thus, the privacy exemption cannot be used to withhold these records from disclosure. The district attorney’s office argues that “[w]here the shooting was deemed to be justified in this death investigation under [G. L. c. 38, § 4], and no criminal prosecution ensued, the records are not ‘law enforcement misconduct’ records at all.” Essentially, the district attorney’s office asserts that unless an investigation ends in a finding that a law enforcement officer engaged in misconduct, the carve- out to the privacy exemption does not apply. This contention of the district attorney’s office finds no support in the language of the statute. General Laws c. 4, § 7, Twenty-sixth (c), clearly and unambiguously states that the privacy exemption does not apply to an “investigation” of law enforcement misconduct. To require the investigation to end with a finding of police misconduct places the cart before the horse and runs counter to the goals of police accountability and transparency. Thus, the investigation into the shooting of the decedent in this case was a “law enforcement misconduct investigation.” Accordingly, the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each “relate[] to a law enforcement misconduct investigation” and may not be withheld under the privacy exemption. Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. at 11-12. In light of the Mack decision, I find that the City did not meet its burden to withhold the record under Exemption (c) of the Public Records Law. 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

Romina Moniz SPR24/2234 Page 6 August 21, 2024 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 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. Under Exemption (f), the City states, “the record at issue includes the identities of voluntary witnesses who were sources of information in the investigation into a report of alleged abuse by a family/household member. These statements were provided and collected out of the public view. Disclosing these sources would not be in the public interest because disclosure will likely prevent private citizens from coming forward in the future and cooperating in like investigations. As such, the City anticipates making redactions under exemption (f).” To the extent the record contains identifying information of any victims, complainants and voluntary witnesses, the City may redact such information from the record. Additionally, it is unclear from the City’s response whether any segregable portion of the record can be provided. As a result, I find the City has not met its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. 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). The Department must clarify these matters. 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 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Romina Moniz SPR24/2234 Page 7 August 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Rose Katz