Annemarie Grant v. Department of State Police (SPR 20243380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 2, 2025 SPR24/3380 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Annemarie Grant appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 8, 2024, Ms. Grant requested, “all files, documents, reports, audio files, video files in your possession, custody or control pertaining to February 7th 2020 in relation to the shooting of [an identified individual] 2/7/20 in Brookline. To include but not limited to: emails, email correspondence, notes, cell phone records, texts, voicemails, Brookline Chase ATM 2 videos.” The Department provided a response on December 18, 2024, identifying several records responsive to the request and citing Exemption (c) of the Public Records Law to withhold the records. Unsatisfied with the Department’s response, Ms. Grant petitioned this office and this appeal, SPR24/3380, 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. 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 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

Allison Mondello SPR24/3380 Page 2 January 2, 2025 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 December 18th Response In its December 18, 2024 response, the Department cited Exemption (c) of the Public Records Law to withhold records responsive to Ms. Grant’s request. 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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

Allison Mondello SPR24/3380 Page 3 January 2, 2025 carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Department states the following: The Department takes the position that the requested records are not subject to public disclosure pursuant to General Laws c. 4, §7, cl. 26 (c) … In this instance, the Department deems the records and photographs sought to implicate matters of intimate detail of a highly personal and private nature. The Department asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive matters. See, e.g., Opinion of the Supervisor of Public Records, SPR05/063 (emergency 911 call of family member concerning suicide attempt of another family member not subject to public dissemination pursuant to privacy exemption of G.L. c. 4, §7, cl. 26 (c)). Based upon the foregoing, the Department denies your public records request. Please note the Department has, in very limited circumstances, released investigative reports/photographs of unattended deaths to authorized family members. In these instances, the Department requests that the executor/ administrator execute an authorization permitting the release of this information to an attorney or other legal representative. In the event that letters of administration/probate filings have been filed appointing an executor, the Department suggests that the appointed administrator/executor forward copies of the same to this office with the release. Upon receipt, this office will reconsider your request. Current Appeal In her appeal petition, Ms. Grant states, “[t]hey did not provide any of the public records that were requested - they only list 3 documents - which cannot be all they have for such a large request.” The Department has not demonstrated that the records, in their entirety, are intimate details of a highly personal nature. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Consequently, I find the Department has not met its burden of demonstrating how the responsive records may be withheld in their entirety. In addition, I find the Department must identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify this.

Allison Mondello SPR24/3380 Page 4 January 2, 2025 Conclusion The Department is ordered to provide a response to Ms. Grant 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Annemarie Grant