Raymond Caraballo v. Department of State Police (SPR 20250060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2025 SPR25/0060 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 Raymond Caraballo 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 December 5, 2024, Mr. Caraballo requested, [1] [An identified individual’s] body camera footage, dash cam footage, and footage from inside of cruiser[;] [2] [I]ncident reports or use of force reports of any type or reports related to [a specified] traffic stop[;] [3] [An identified individual’s] disciplinary record and how many complaints he has against him and what happen, did he get disaplend[sic][.] Previous Appeal This request was the subject of a previous appeal. See SPR25/0001 Determination of the Supervisor of Records (January 7, 2025). In my January 7th determination, I found that the Department had provided Mr. Caraballo with a response to his request. The Department provided a response on January 6, 2025. Unsatisfied with the response, Mr. Caraballo petitioned this office and this appeal, SPR25/0060, was opened as a result. Subsequent to the opening of this appeal, the Department provided Mr. Caraballo with a supplemental response on January 8, 2025. 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 SPR25/0060 Page 2 January 10, 2025 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 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Caraballo’s status will play no role in a determination as to whether the records should be disclosed or withheld under the Public Records Law. The Department’s January 6th and January 8th Responses In its January 6, 2025 response, the Department informed Mr. Caraballo that it was withholding records responsive to Requests #1 and #2, pursuant to Exemption (f) of the Public Records Law. In its January 8, 2025 response, the Department provided Mr. Caraballo with records responsive to Request #3, redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. The Department further informed Mr. Caraballo that it was withholding an additional responsive record pursuant to Exemption (f) of the Public Records Law.

Allison Mondello SPR25/0060 Page 3 January 10, 2025 Current Appeal In his January 7, 2025 petition to this office, Mr. Caraballo objected to the withholding of records responsive to Request #1 and Request #2. In an email to this office on January 9, 2025, Mr. Caraballo objected to the redaction and withholding of records responsive to Request #3. Request #3 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its January 8th response, the Department redacted a reference to an automobile accident which occurred in the juvenile years of a specific witness. To justify this redaction, the Department stated: … [T]he Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure. For instance, the provisions of G.L. c. 119, §§1-84, relative to care and protection of children proceedings, specifically prohibit the release of information relating to juveniles; G.L. c. 71, §34D (2002 ed.) permits the Board of Education to adopt regulations limiting access to student records; G.L. c. 276, §100B permits the Commissioner of Probation to seal records relative to child delinquency matters; G.L. c. 120, §21

Allison Mondello SPR25/0060 Page 4 January 10, 2025 permits the Department of Youth Services Records to withhold records of a child delinquency commitment; G.L. c. 209A, §8 deems 209A records relating to minors as confidential and not subject to public release; and G.L. c. 51, §4 prohibits municipal voter registrars from disclosing the names of minor children aged 3-16 to the public … Based on the Department’s response, it is unclear how the redacted information falls within the type of records contemplated by the cited statutes. The Department merely cites the statutes without any further explanation as to the statutes’ applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Department must clarify this matter. 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. 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. 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

Allison Mondello SPR25/0060 Page 5 January 10, 2025 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 into the conduct of a law enforcement officer employed by the Department. Consequently, 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). 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.

Allison Mondello SPR25/0060 Page 6 January 10, 2025 In its January 8, 2025 response to Request 3, the Department provided responsive records with redactions made pursuant to Exemption (f) of the Public Records Law. To justify these redactions, the Department cited the importance of encouraging “… individual citizens to come forward and speak freely with police concerning matters under investigation …” In its January 8, 2025 response, the Department withheld responsive records pursuant to Exemption (f) of the Public Records Law, stating: Releasing information and records regarding an on-going investigation would detract from effective law enforcement and could prejudice investigative efforts. The Department is compelled to conduct a thorough and objective investigation of the events into this incident. There is an interest in preserving the integrity of the investigation and any potential subsequent prosecution. It is not in the public’s interest to release this information, as such release could potentially taint any potential jury pool if the investigation results in a criminal prosecution. To the extent that the records contain the identifying information of voluntary witnesses, I find the Department may permissibly redact such portions from the responsive records. However, it is unclear how responsive records can be withheld in their entirety 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). The Department must clarify these matters. Requests #1 and #2 In its January 6th response, the Department stated: Please note that the records you seek relate to an on-going and active criminal prosecution which is now pending. Because of the pendency of criminal charges, the records you seek are not subject to public disclosure … In a January 8, 2025 email communication to this office, the Department confirmed that the records responsive to Requests #1 and #2 were directly related to an incident which led to the filing of a criminal complaint in New Bedford District Court. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

Allison Mondello SPR25/0060 Page 7 January 10, 2025 the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Where the records responsive to Requests #1 and #2 are directly related to pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (f) of the Public Records Law to said records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, the Department is ordered to provide Mr. Caraballo 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. Mr. Caraballo 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: Raymond Caraballo Alexandra Orn