Joseph Rowland v. Boston, City of - Public Records (SPR 20250022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 8, 2025 SPR25/0022 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 Appeals This request was the subject of previous appeals. See SPR24/2727 Determination of the Supervisor of Records (October 15, 2024) and SPR24/2849 Determination of the Supervisor of Records (October 31, 2024). In my October 31st determination, I found that the Department had not met its burden to withhold responsive records, in their entirety, under Exemptions (c) and (f) of the Public Records Law and ordered the Department to provide a further response. The Department provided a response on November 15, 2024. Unsatisfied with the response, Mr. Rowland petitioned this office and this appeal, SPR25/0022, 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

Shawn A. Williams, Esq. SPR25/0022 Page 2 January 8, 2025 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. Att’y 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 November 15th Response In its November 15, 2024 response, the Department informed Mr. Rowland that it would continue to withhold records responsive to his request, assigned reference number R003884- 092424. The Department cited Exemption (c) of the Public Records Law to justify this withholding. Current Appeal In his January 3, 2025 petition to this office, Mr. Rowland objects to the withholding of responsive records. In particular, Mr. Rowland states that Exemption (c) does not apply to records of a law enforcement misconduct investigation. Mr. Rowland further expresses his belief that the Department should be able to provide segregable portions of the responsive records with any exempt information redacted. 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,

Shawn A. Williams, Esq. SPR25/0022 Page 3 January 8, 2025 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 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 November 15th response, the Department stated: The audio files of the officers contain medical information 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 contain medical information where officers are speaking about a traumatic event. In the determination, the Supervisor recognizes that medical information warrants exemption and that there is a strong public policy in Massachusetts that favors confidentiality as to medical data. The carve out in Exemption (c) applicable to law enforcement misconduct investigations relates to the second part of the exemption which refers to “any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy.” Medical information may still be withheld under privacy … 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 Sup. No. 11-01184- A (June 14, 2013). However, providing segregable portions of the requested record is not possible without compromising medical privacy or other information. Withholding the records in their entirety is necessary in order to protect future law enforcement efforts.

Shawn A. Williams, Esq. SPR25/0022 Page 4 January 8, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold 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). 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: Joseph Rowland Christine O’Donnell, Esq.