Stephen Superba v. Holyoke, City of - City Clerk (SPR 20242446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2024 SPR24/2446 Kathleen E. Degnan, Esq. Assistant City Solicitor City of Holyoke City Hall Annex 20 Korean Veterans Plaza Holyoke, MA 01040 Dear Attorney Degnan: I have received the petition of Stephen R. Superba appealing the response of the City of Holyoke (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2024, Mr. Superba requested the following: [T]he report on the sexual harassment situation that came to light on March 29, 2023 involving [a specified police officer] and an unnamed victim. I am also requesting the separate investigative report generated as the result of an accusation that [the specified officer] inappropriately accessed Criminal Offender Record Information against an individual. Following further correspondence between the City and Mr. Superba, the City responded on July 9, 2024, providing a fee estimate of $250. Subsequently, I understand that on the same day Mr. Superba paid the fees, and the City provided responsive records in redacted form. On August 12, 2024, the City provided a further response, claiming that the responsive records were redacted, and numerous pages withheld, pursuant to Exemptions (a), (c), (f), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f), (n). Unsatisfied with the City’s responses, Mr. Superba petitioned this office, and this appeal, SPR24/2446, 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, 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

Kathleen E. Degnan, Esq. SPR24/2446 Page 2 September 11, 2024 § 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. Current Appeal In his appeal petition, Mr. Superba contends that he “simply would like a complete document for which [he] paid $250.” Further, he contends that “there are a good quantity of pages missing and so this was not in complying with the letter of the Public Records Law.” He also clarifies that “what [he] found is that [he] was missing a considerable number of exhibits from [his] pack.” Additionally, Mr. Superba explains the following concerning his appeal: I’m not protesting any redactions; I am protesting the proper manner of redactions should the City be claiming that they excluded documents as their method of redaction. But there are many documents that are missing; one example is a poem written by [the specified police officer] to the sexual harassment victim that was not redacted —— but it’s not in my packet of documents — and it’s part of the email thread between [the Assistant City Solicitor] and myself where she refers to it as Exhibit 33 — and I requested that exhibit. My position is that [the Assistant City Solicitor] inadvertently excluded these in her haste to put them together for my pick up —— she was completing this task as I arrived for pick up. Mr. Superba also notes that he “received the hard copy of the record which was 500+ pages long and there was no cover letter.” Upon review of the appeal, it appears that Mr. Superba is not objecting to the redactions made to the report he received, only to the pages and documents that were withheld from disclosure. The City’s July 9th and August 12th Responses In its July 9, 2024 response, the City provides responsive records in redacted form, and in two responses on August 12, 2024, the City claims that the responsive records were redacted, and numerous pages withheld, pursuant to Exemptions (a), (c), (f), and (n) of the Public Records

Kathleen E. Degnan, Esq. SPR24/2446 Page 3 September 11, 2024 Law. See G. L. c. 4, § 7(26)(a), (c), (f), (n). In its August 12th response, an attorney for the City explains the following: From that record, the following pages were withheld under the following exemptions: A). Pages 21-33 were withheld pursuant to Exemption (f) of G.L. c. 4, Section 7(f) - the investigatory exemption. B). Pages 124-166 were withheld pursuant to Exemption (f) of G.L. c. 4, Section 7(a) and (f)- the statutory (i.e. are precluded from disclosure by law and investigatory exemptions respectively). C). Pages 188-189, 190-192 and 195-197 were withheld pursuant to Exemption (n) of G.L. c. 4, Section 7(c). D). Page 210 was withheld pursuant to Exemption (c) of G.L. c. 4, Section 7(c) - privacy exemption E). Pages 240-253 were withheld pursuant to Exemption (c) of G.L. c. 4, Section 7(c) - privacy exemption. F). Pages 390-404 were withheld pursuant to Exemption (c) of G.L. c. 4, Section 7(c) - privacy exemption G). Pages 460-470 were withheld pursuant to Exemption (a) of G.L. c. 4, Section 7(a) - statutory exemption (i.e. are precluded from disclosure by law) These pages are the only pages which were withheld and the reasons why they were will withheld. [sic] In a separate August 12th response, an attorney for the City further explains the following: The only pages you do not have are the ones that we indicated have been withheld. These pages have been withheld because the public records law allows the city to withhold them.... Unfortunately, I cannot show you what has been withheld because the pages are being withheld under: (1) the statutory exemption (which means that the law precludes us from disclosing them): (2) under the privacy exemption, and (3) the investigatory exemption. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Kathleen E. Degnan, Esq. SPR24/2446 Page 4 September 11, 2024 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, 154 (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.” 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. Based on the City’s responses, it is unclear which statute or statutes the City is referring to under Exemption (a) in order to withhold the responsive records. 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”). The City must clarify what statute it claims either specifically, or by necessary implication, permits withholding of the responsive records, and must explain with specificity how such a statute applies. See G. L. c. 4, § 7(26)(a). 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.

Kathleen E. Degnan, Esq. SPR24/2446 Page 5 September 11, 2024 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. The Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In this case, where the responsive records form part of a report of an investigation into the alleged misconduct of a police officer, the City has not met its burden to withhold responsive records under Exemption (c). 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-

Kathleen E. Degnan, Esq. SPR24/2446 Page 6 September 11, 2024 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. Based on the City’s responses, it is unclear how the withheld records constitute investigatory materials. It is additionally not certain whether the withheld records pertain to an ongoing investigation. Further, the City did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The City must clarify this. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in

Kathleen E. Degnan, Esq. SPR24/2446 Page 7 September 11, 2024 demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In this case, the City has not met its burden to withhold records under Exemption (n). Based on the City’s responses, it is unclear how the withheld records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the City did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the City has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The City must clarify these matters. Preferred Format of the Requestor A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In correspondence included with his appeal petition, Mr. Superba indicates that he would like the responsive records as “an electronic file.” Where Mr. Superba has described the format of the records he is seeking, it is unclear why the City has not provided the data in electronic format. The City must explain whether it is feasible to provide the responsive records in an electronic, searchable machine-readable form. Conclusion Accordingly, the City is ordered to provide Mr. Superba 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: Stephen R. Superba