Mark Hourihan v. Massachusetts Department of Transportation (SPR 20242474)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2024 SPR24/2474 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Mark Hourihan, of Live Boston News, appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2024, Mr. Hourihan requested, “... the footage from the accident that occurred at approximately 00:10 hours today including the emergency response.” Prior Appeal The requested record was the subject of a prior appeal, See SPR24/1679 Determination of the Supervisor of Records (June 18, 2024). In my June 18th determination, I found that it was unclear how the record, in its entirety, can be withheld under Exemption (f). MassDOT responded on August 30, 2024. Unsatisfied with MassDOT’s response, Mr. Hourihan petitioned this office and this appeal, SPR24/2474, 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). 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

William J. Doyle, Esq. SPR24/2474 Page 2 September 17, 2024 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. MassDOT’s August 30th Response In its August 30, 2024 response, MassDOT withheld the requested record, in its entirety, under Exemptions (c) and (f) of the Public Records Law. 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. Under Exemption (c), MassDOT states, “... the video requested contains the extraction of a body from the accident site and is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26) (c), which exempts materials ‘which may constitute an unwarranted invasion of personal privacy’. MassDOT has determined that the public interest in the release of

William J. Doyle, Esq. SPR24/2474 Page 3 September 17, 2024 this depiction does not outweigh the privacy interests of the family and acquaintances of the deceased.” Based on MassDOT’s response, it is unclear how the record, in its entirety, contains 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, MassDOT did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. 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. Under Exemption (f), MassDOT stated, As late as this morning, we have confirmed that the investigation of this fatality by the Massachusetts State Police is ongoing, and cannot rule out the possibility (as would be the case in all fatality investigations) that additional governmental offices (i.e. Medical Examiner’s office, District Attorney’s office, etc.) could have their own ongoing investigations. Any release of the video at this time for records compiled out of the public view by investigatory officials, if disclosed, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”

William J. Doyle, Esq. SPR24/2474 Page 4 September 17, 2024 Although MassDOT claims it has an open investigation regarding the requested record, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is uncertain from MassDOT’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. MassDOT did not demonstrate how disclosure of any portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). MassDOT must clarify these matters. Conclusion Accordingly, MassDOT is ordered to provide Mr. Hourihan with a response to the 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. Mr. Hourihan may appeal MassDOT’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mark Hourihan