Joseph Rowland v. Boston, City of - Police Department (SPR 20242849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2024 SPR24/2849 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Joseph Rowland 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 September 24, 2024, Mr. Rowland requested “… three audio recorded interviews from the [Firearm Discharge Investigation Team’s] investigation into the shooting of [an identified individual] …” Previous Appeal This request was the subject of a previous appeal. See SPR24/2727 Determination of the Supervisor of Records (October 15, 2024). In my October 15th determination, I found that the Department had not met its burden of specificity to withhold responsive records, and ordered that Mr. Rowland be provided with a supplemental response. The Department provided a response on October 16, 2024. Unsatisfied with the response, Mr. Rowland petitioned this office and this appeal, SPR24/2849, 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). 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. 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. SPR24/2849 Page 2 October 31, 2024 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 16th Response In its October 16, 2024 response, the Department informed Mr. Rowland that it was withholding records responsive to his request, assigned reference number R003884-092424. To justify this withholding, the Department cited Exemptions (c) and (f) of the Public Records Law. Exemption (c) Exemption (c) permits the withholding of: 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. 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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

Shawn A. Williams, Esq. SPR24/2849 Page 3 October 31, 2024 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 16th response, the Department states the following: The audio files of the officers contain medical information and other materials or data relating to specific individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy. The Department recognizes that there is no privacy exemption for police misconduct investigations; however, these interviews are not part of police misconduct investigations. These interviews contain intimate details of a highly personal nature where officers are speaking about a traumatic event. While it is in the interest of the public to know whether public servants are carrying out their duties in an efficient manner, this information is available through the transcripts. The Legislature passed “An Act relative to justice, equity and accountability in law enforcement in the Commonwealth,” to increase transparency in law enforcement investigations. See St. 2020, c. 253, §§ 2, 30. The law was intended to provide the public with greater insight into officers’ performance history. However, providing the audio files of the officers’ interviews does not provide greater insight into their performance history. The interviews do not relate to a misconduct investigation and transcripts of the interviews are available. The text of 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, 11-12 (2024) (the privacy exemption cannot justify the withholding of records related to the investigation of a police shooting by a district attorney). This is true regardless of whether the investigation ends with a finding of police misconduct. Id. Here, the requested records concern an investigation by the Firearm Discharge Investigative Team (FDIT). Following a fatal police shooting, the FDIT interviewed two police officers and a witness with the express purpose of evaluating the conduct of those officers. Consequently, notwithstanding the Department’s statement that “[t]he interviews do not relate to a misconduct investigation …” I find the Department has not demonstrated that the requested records are not related to an investigation of law enforcement misconduct, as contemplated by Exemption (c).

Shawn A. Williams, Esq. SPR24/2849 Page 4 October 31, 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, 371 Mass at 62. 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.” Id. 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. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its October 16th response, the Department states the following: Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward if their audio recorded interviews are released. Encouraging citizens and prospective witnesses to come forward and speak with police and the ability of the police department to establish trust with the community are essential elements of the investigatory process and effective law enforcement. Without this collaborative component, investigations will become more difficult. The collaboration between the public and the police and

Shawn A. Williams, Esq. SPR24/2849 Page 5 October 31, 2024 encouraging the public to cooperate with police investigations are reasons contemplated by the investigatory exemption. If citizens and prospective witnesses do not come forward, the investigatory process will be hampered. Such a result will prejudice future law enforcement efforts and the possibility of effective law enforcement which is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts. To the extent that the records contain identifying information of a voluntary witness, the Department may permissibly redact such portions from the responsive records. However, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is not clear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department also did not demonstrate how disclosure of any segregable portion of the responsive records “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). See Reinstein, 378 Mass. 281, 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). As a result I find that the Department has not met its burden of specificity to withhold the responsive records, in their entirety, under Exemptions (c) and (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Rowland 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. Rowland may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Rowland Christine O’Donnell, Esq.