Kevin Rothstein v. Boston, City of - Police Department (SPR 20243353)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3353 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 Kevin Rothstein, of WCVB Channel 5 Boston, 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 November 20, 2024, Mr. Rothstein requested the following: [C]opies of the following public records, all associated with an incident from Oct. 20, 2024 at approximately 4:30 a.m. involving a motor vehicle crash in East Boston, where one of the involved parties was an off-duty Boston police detective: [1] All body camera footage [2] All photos and all other videos taken as part of the investigation [3] All offense/incident reports or similar documents [4] All documents, including photos, associated with damage done to the Boston police vehicle involved in the crash[.] I understand there may be an internal affairs investigation into the incident. The Department responded on December 1, 2024, and assigned tracking number B003372-112124 to this request. Unsatisfied with the Department’s response, Mr. Rothstein petitioned this office, and this appeal, SPR24/3353, was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Mr. Rothstein on December 18, 2024, the Department provided a further response. 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

Shawn A. Williams, Esq. SPR24/3353 Page 2 December 27, 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(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. Rothstein argues the following: In this case, there is significant public disclosure of both the existence of the internal affairs investigation and details of the incident itself. The incident was described in-depth during the open court hearing by the complainant, a Boston police sergeant, and then the Boston Police Department released 7 pages of police reports to me in response to my public records request. The Boston Police Department’s media spokesperson acknowledged the existence of the internal affairs investigation in the department’s public statement about the incident. The Department’s December 1st and December 18th Responses In its December 1, 2024 response, the Department provided records in redacted form, and claimed the records were redacted pursuant to Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). In its December 18, 2024 response, the Department elaborates on its claims for redacting the responsive records, and also indicates it is withholding “records associated with the internal affairs investigation pursuant to Exemption (f).” 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

Shawn A. Williams, Esq. SPR24/3353 Page 3 December 27, 2024 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 December 1st response, under Exemption (c), the Department argues that “portions of the records attached hereto have been redacted under the portion of the privacy exemption to the public records law that applies to any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. G. L. c. 4 §7(26)(c).” In its December 18th response, the Department further explains that “the Department provided ... an incident report and made redactions of personally identifiable information of specific individuals pursuant to Exemption (c) of the Public Records Law.” The Department is advised that 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 requested records are related to an internal affairs investigation of a law enforcement officer, I find the Department has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Department has not met its burden to redact the records pursuant to Exemption (c) of the Public Records Law.

Shawn A. Williams, Esq. SPR24/3353 Page 4 December 27, 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. 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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 December 1st response, under Exemption (f), the Department argues the following: [A]ll records associated with the internal affairs investigation into this incident are associated with an active and ongoing investigation. As such, [the] request is denied, as all records associated with this matter are exempt from disclosure pursuant to the investigative exemption to the public records law. G. L. c. 4, § 7 (26) (f). Disclosure of any responsive records would harm the investigative efforts of the Department. In its December 18th response, under Exemption (f), the Department further argues the

Shawn A. Williams, Esq. SPR24/3353 Page 5 December 27, 2024 following: The Department withheld the records associated with the internal affairs investigation pursuant to Exemption (f) because those records are related to an open and ongoing investigation and their release at this time will harm the investigatory process and prejudice effective law enforcement. The Department stands by its previous response and provides further clarification herein. A records custodian may withhold records concerning investigatory materials necessarily compiled out of public view by law enforcement officials where the disclosure of such materials would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See G.L. c.4, § 7(26) (f). . . . The Department is denying your request because the record is part of an open investigation and disclosure will prejudice future law enforcement efforts for the reasons stated below. Disclosure of the requested records would harm the investigation because investigators are identifying and interviewing witnesses, gathering and analyzing data, assessing the evidence and making interim conclusions. Disclosure of the records would disclose confidential investigative techniques, procedures or sources of information. Disclosure could inhibit the investigatory process by discouraging potential witnesses to come forward or influence witness statements. 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 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. Further, releasing this record at this time may influence potential witnesses thereby compromising the investigatory process. To protect the integrity of the investigative process, information relating to confidential investigative techniques, procedures, and sources, and to maintain the ability to foster cooperation with the public, the Department is denying your request at this time. This record is part of an ongoing investigation and its disclosure would prejudice the possibility of effective law enforcement; therefore, disclosure of the requested record is not in the public interest. Disclosure of this record would also have a chilling effect on future law enforcement efforts. A records custodian is obligated to provide segregable portions of records where possible. See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk

Shawn A. Williams, Esq. SPR24/3353 Page 6 December 27, 2024 Sup. No. 11-01184- A (June 14, 2013). However, providing segregable portions of the requested record is not possible without revealing confidential investigative techniques, procedures or sources of information. Withholding this record in its entirety is necessary to prevent alerting suspects to the confidential investigatory techniques of law enforcement officials. Although the Department claims that there is an open investigation, it is unclear how the investigation remains ongoing and how the requested records are part of the ongoing investigation. Also, it is not clear how disclosure of the records would disclose confidential investigative techniques, procedures or sources of information. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department 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. at 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Rothstein 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: Kevin Rothstein