Blue POV v. Department of State Police (SPR 20242278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2024 SPR24/2278 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of BluePOV (“requestor”) appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2024, the requestor sought the following: …all [body worn camera (BWC)] and/or dashcam footage of the incident that happened with the H-7 Troop of Milton Massachusetts, in April of 2023, on the Route 24 area of Avon where troopers vehicle was crashed into. Also the names and badge numbers of all officers involved. It has been identified as Cruiser Crash 2023-0H7-002577. Previous appeal This request was the subject of a previous appeal. See SPR24/1465 Determination of the Supervisor of Records (May 29, 2024). In my May 29th determination, I found that the Department’s May 14, 2024 response did not contain the specificity required in a denial of access to public records. The Department responded on August 12, 2024. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR24/2278, 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 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

Allison Mondello SPR24/2278 Page 2 August 26, 2024 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. See 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 Department’s August 12th response In its August 12, 2024 response, the Department stated, “... the Department has identified responsive video(s), however it is the Department’s position these records are not subject to public disclosure ...” The Department also advised, “[e]ach report relates to both an arrest and to a criminal charge against a specifically named individual. Accordingly, they are not subject to public release.” In support of withholding the responsive records the Department cited Exemptions (a), (c), and (f) of the Public Records Law. 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 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.”

Allison Mondello SPR24/2278 Page 3 August 26, 2024 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 Department cited the Criminal Offender Record Information (CORI) Act which is currently defined as: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration ... Each report relates to both an arrest and to a criminal charge against a specifically named individual. Accordingly, they are not subject to public release. G. L. c. 6, § 167. In its response, the Department states, ... the records you seek constitute Criminal Offender Record Information (CORI) which are exempt from public release pursuant to G. L. c. 4, § 7 cl. 26(a) which exempts records that are “specifically or by necessary implication exempted from disclosure by statute.” Releasing arrest reports would violate G.L. c. 6, § 172 which prohibits the dissemination of CORI information. The statute, G. L. c. 6, § 172 et. seq., referenced by the Department regards dissemination of Criminal Offender Record Information. Upon review, it is unclear how the Department is permitted to withhold the requested records. Specifically, it is uncertain how these records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as described in G. L. c. 6, § 167 above. The Department must clarify. Exemption (c) Exemption (c) applies to:

Allison Mondello SPR24/2278 Page 4 August 26, 2024 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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 Department asserts, “... [the] request seeks records that concern the alleged misconduct of a private person and as such, there is little to offset the risk of adverse collateral consequences arising from the disclosure of these records. Therefore, the Department denies your request pursuant to M.G.L. c. 4, §7, cl. 26 (c), as a matter of personal privacy relying upon the reasoning in the Boston Globe Media Partners case.” See Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, 484 Mass. 279 (2019). Based on the Department’s response, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department did not provide information with respect to examining whether the public interest in obtaining

Allison Mondello SPR24/2278 Page 5 August 26, 2024 the requested information outweighs the seriousness of any invasion of privacy. Id. The Department must clarify. 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 289-290. In its response the Department asserts, It is the Department’s position that the release of these records would so prejudice the possibility of effective law enforcement that their disclosure would not be in the public interest. The records at issue constitute investigatory materials since they outline the steps taken by members of the Department as this investigation developed. In addition, these records are replete with the identifying information of witnesses. The disclosure of this information would discourage individuals from coming forward to speak about matters under investigation out of fear that their identi[t]ies would be released. The disclosure of these records would provide a roadmap as to how such enterprises are investigated and would provide a roadmap to those engaged in other large scale criminal enterprises as to how to avoid detection by law enforcement. Based upon the Department’s response, it is unclear whether the records are related to an ongoing investigation and whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any portion of the responsive records “would probably so

Allison Mondello SPR24/2278 Page 6 August 26, 2024 prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). It is additionally uncertain how the records cannot be redacted to protect the anonymity of voluntary witnesses. 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). Conclusion Accordingly, the Department is ordered to provide the requestor 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. The requestor may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: BluePOV