Emma Rindlisbacher v. Plymouth County District Attorney's Office (SPR 20242466)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2024 SPR24/2466 Kristin Freeman, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Freeman: I have received the petition of Emma Rindlisbacher appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2023, Ms. Rindlisbacher requested, “... body camera footage from [an identified] officer that begins at the end of the body camera footage already released by the Lakeville police department and continues for thirty additional minutes” relating to an officer shooting. Subsequently Ms. Rindlisbacher modified her request “to increase the length of time of the video footage from 30 minutes to three hours.” Prior Appeals and In Camera Review The requested records were the subject of prior appeals and an in camera review. See SPR23/3012 Determination of the Supervisor of Records (December 28, 2023); SPR24/0181 Determination of the Supervisor of Records (February 5, 2024); and SPR24/0527 Determinations of the Supervisor of Records (March 4, 2024 and May 9, 2024) and SPR24/1665 Determination of the Supervisor of Records (June 14, 2024). In my June 14th determination, I found that in light of the Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1 (2024) decision, the Office did not meet its burden to withhold portions of the video under Exemption (c) of the Public Records Law. The Office responded on August 29, 2024. Unsatisfied with the response, Ms. Rindlisbacher petitioned this office and this appeal, SPR24/2466, 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

Kristin Freeman, Esq. SPR24/2466 Page 2 September 13, 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(d)(iv) (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…”); 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 Office’s August 29th response In its August 29, 2024 response, the Office cited Exemptions (c) and (f) of the Public Records Law to redact certain portions of the body cam footage. The Office also provided analysis of the Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1 (2024) case to the requested records. Current appeal In her appeal, Ms. Rindlisbacher asserted, “... the carve-out to the privacy exemption is for anything ‘related to a law enforcement misconduct investigation’... the statute says nothing about whether the investigation is criminal or not. There is nothing about an investigation having to be ‘routine’ or not ... Under Mack it is clear that this video should be released.” 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

Kristin Freeman, Esq. SPR24/2466 Page 3 September 13, 2024 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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). 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. Under Exemption (c), the Office states the following: Unlike Mack, what she is requesting are not records that fall under the “law enforcement misconduct investigation” carve-out to the privacy exemption, as this was not a law enforcement misconduct investigation. It was the immediate aftermath of the incident with statements, emotions and images happening in real time. The use of force investigation focused on what led up to the shooting and the shooting itself, not images of the defendant on the ground, statements regarding his treatment and certainly not the spontaneous reaction of the officer. As such, Mack does not apply and the privacy exemption can be used to withhold the redacted footage. The Plymouth County District Attorney’s Office recognizes that, the public has an interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner (Id at 292) and this is accomplished in the footage, including the redacted footage, that is provided. Hearing the officer while he is in a vulnerable emotional state serves absolutely zero public interest. On the contrary, the audio portion, if disclosed, would simply serve to humiliate him and be an unwarranted invasion of personal privacy, especially where he is still a police officer who deals with the public routinely. Releasing the footage of this highly sensitive and personal situation would also cause renewed emotional distress and be a constant reminder of what was likely one of the worst days of his

Kristin Freeman, Esq. SPR24/2466 Page 4 September 13, 2024 life. This is contrary to what the studies show should occur following the use of deadly force. Thus, the public’s right to know does not take precedence over the officer’s privacy interest. PETA, 477 Mass. at 292. Even if the determination is made that Mack does apply, the Commonwealth feels compelled to argue the privacy exemption again on behalf of the defendant and the police officer. The Commonwealth has an ethical obligation to protect their privacy rights regardless of the factual circumstances of the criminal case, i.e. police involved shooting. Under no circumstance should the Commonwealth be bound to release footage of the defendant wounded on the ground making audible sounds as he is suffering from multiple gunshot wounds with his buttocks exposed. Nor should we have to disclose any part of the video that discusses his injuries, medical treatment or mental health status. Similarly, the police officers right to privacy should be protected. 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 other identifying information of victims, complainants and voluntary witnesses may deter other

Kristin Freeman, Esq. SPR24/2466 Page 5 September 13, 2024 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. Under Exemption (f), the Office asserts, [The police officer] is the victim in the corresponding criminal case with respect to the count of assault with a dangerous weapon in violation of M.G.L. Ch. 265 s. 15B(b) and threats to commit murder in violation of M.G.L. Ch. 275 s. 2 with which the defendant is charged. The fact that he is a police officer acting in his official capacity does not negate the fact that he is also a victim. Regardless of whether the officer’s name has been made public, it is the Commonwealth’s obligation to withhold anything that would identify him, this would be inclusive of his statements and emotional response to the situation. The Commonwealth has a duty to protect the identity of victims in all of its cases, no matter their occupation. The defendant has the right to a fair trial and the disclosure of the redacted footage could affect that. The prevention of the disclosure of these statements prevents a rush to judgment and is vital to the integrity of the investigation. See Commonwealth v. Winfield, 464 Mass. 672 (2013) (witness privacy concerns, recording of testimony); See also WBZ-TV4, 408 Mass. at 595 (witness statements / investigatory exemption). Additionally, if the footage were released it would be viewed by the public and possibly impact potential jurors. The pre-trial publicity of the remaining footage may make them bias toward the defendant and / or the involved officer. If that happens, it would affect the defendant’s right to a fair trial. The Office further advised that there is litigation involving the defendant known as Commonwealth v. Timothy Hladik, Jr., Wareham District Court, Docket Number 2360CR001658 with a pre-trial conference scheduled for October 10, 2024. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.

Kristin Freeman, Esq. SPR24/2466 Page 6 September 13, 2024 In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemptions (c) and (f) of the Public Records Law to the requested record. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher