Makalah Lacy v. Boston, City of - Police Department (SPR 20242766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2024 SPR24/2766 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Makalah Lacy appealing the response of the Boston Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2021, Ms. Lacy requested, through her attorney at the time, Arielle Sharma, Esq., “all records related to [a named individual] and incidents originating at [a specified] Boston apartment complex [on five particular dates].” On March 23, 2021, Ms. Lacy further requested “all body camera footage by Boston police officers, 911 calls and BEMS or any other records for [certain] dates regrading incidents” with an identified individual. I understand the Department has assigned “Reference # R000518-032321” to this request. Previous Appeals This request was the subject of previous appeals. See SPR21/1012 Determination of the Supervisor of Records (May 5, 2021), SPR21/1150 Determination of the Supervisor of Records (May 14, 2021), SPR21/1527 Determination of the Supervisor of Records (June 29, 2021), and SPR24/1141 Determination of the Supervisor of Records (April 30, 2024). In my April 30th determination, I ordered the Department to clarify its reasons for redacting responsive records. Subsequently, the Department responded on October 4, 2024. Unsatisfied with the Department’s response, Ms. Lacy petitioned this office, and this appeal, SPR24/2766, 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

Shawn A. Williams, Esq. SPR24/2766 Page 2 October 18, 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. 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 October 4th Response In its October 4, 2024 response, the Department cites Exemptions (c) and (f) of the Public Records Law for redacting responsive 911 call transcripts. See G. L. c. 4, § 7(26)(c), (f). The Department also notes that “in its June 21, 2021 response, the [Boston Police] Department provided [Ms. Lacy] with body worn camera footage with no redactions.” Current Appeal In her appeal petition, Ms. Lacy argues the following: I am once again requesting: • The names and badge numbers of all officers involved on all relevant dates (March 3, March 8, March 9, and March 11, 2021). • The full and unredacted body camera footage from officers present during my transport in the EMS vehicle and at Boston Medical Center on March 8, 2021. • Unredacted transcripts of communications between officers and Boston Police Dispatch. • A detailed explanation for the absence of body camera footage following my arrival at the hospital, and a full accounting of any police reports documenting my release from detainment and interactions with officers at the hospital. Records in Existence; No Duty to Answer Questions Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). As noted in the prior determination, the Department has previously confirmed that it

Shawn A. Williams, Esq. SPR24/2766 Page 3 October 18, 2024 provided all responsive body camera footage in its custody. See SPR24/1141 Determination of the Supervisor of Records (April 30, 2024). Where the Department previously confirmed that it does not possess additional responsive body camera footage, and is not required to answer questions in response to a public records request, I find that those portions of Ms. Lacy’s appeal are resolved. 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. In its October 4th response, under Exemption (c), the Department explains the following: The Department also provided you with 911 calls. Pursuant to G.L. c. 66 §10 and G.L. c. 4 §7(26)(c), personal identifying information relating to specific individuals has been removed to protect their privacy. The public’s right to know the information does not outweigh the individual’s right to privacy. The information is not available from another public source.

Shawn A. Williams, Esq. SPR24/2766 Page 4 October 18, 2024 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. 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. Id. 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. 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. In its October 4th response, under Exemption (f), the Department argues the following: The Department also redacted information in the 911 calls in order to maintain the confidentiality of witnesses pursuant to Exemption F of the Public Records Law. . . . The Department recognizes that Exemption (f) does not create a blanket exemption of all investigative materials created and maintained by police departments. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990). Exemption (f) does not exempt all investigatory materials, but rather

Shawn A. Williams, Esq. SPR24/2766 Page 5 October 18, 2024 requires a case by case analysis of whether disclosure would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). An essential part of the investigatory process includes a dialogue between police departments, individual citizens and potential witnesses. Exemption (f) contemplates that individual citizens should be encouraged to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observation, hypotheses and interim conclusions. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). Investigative officials are allowed to provide assurances of confidentiality to individuals even after an investigation is closed so that they will speak openly about matters under investigation. The ability of police departments to communicate with individuals and potential witnesses and to develop trust is essential to the investigatory process and effective law enforcement. Disclosing the identity of witnesses or individuals calling the police may discourage individuals from communicating with the police if their names were subject to public disclosure. If individuals and police departments are not able to communicate freely, the investigatory process will be harmed. To protect the confidentiality of individuals and to prevent a chilling effect of future law enforcement efforts, the Department is redacting the names of civilian witnesses because disclosure of this information would prejudice future law enforcement efforts; therefore, disclosure of the requested record is not in the public interest. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the Department to redact the responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Shawn A. Williams, Esq. SPR24/2766 Page 6 October 18, 2024 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Makalah Lacy