Brian Foley v. Boston, City of - Police Department (SPR 20250199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2025 SPR25/0198; SPR25/0199 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petitions of Brian Foley, of Lighthouse Capital, LLC, appealing the response of the Boston Police Department (Department/BPD) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR25/0198 On December 19, 2024, Mr. Foley requested a police report related to a December 18, 2024 incident at an identified address. The Department assigned this request Reference number B003633-121924. SPR25/0199 On January 6, 2025, Mr. Foley requested the following records related to the same December 18, 2024 incident: [1] … all body camera footage for this incident from the officers who responded[;] [2] … any other follow up reports involving this incident[;] [3] … all police incident reports for the last three years which identify [an identified individual] as a “suspect” or “subject” of the incident[;] [4] … Did BPD, or any other agency, confirm that the suspect consulted a therapist the next day? [5] Did BPD notify DCF of this [incident]? The Department assigned this request Reference number B000037-010625. 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

Christine O’Donnell, Esq. SPR25/0198; SPR25/0199 Page 2 January 24, 2025 The Department provided responses on December 20, 2024 and January 16, 2025. Unsatisfied with the responses, Mr. Foley petitioned this office and these appeals, SPR25/0198 and SPR25/0199, were 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 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. Foley’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s December 20th and January 16th Responses In its December 20, 2024 response, the Department provided Mr. Foley with records responsive to his December 19th request, redacted pursuant to Exemption (c) of the Public Records Law. Specifically, the Department informed Mr. Foley that “[t]he public’s right to know the information does not outweigh the individual’s right to privacy. The information is not available from another public source.” In its January 16, 2025 response, the Department responded to Mr. Foley’s January 6th request as follows:

Christine O’Donnell, Esq. SPR25/0198; SPR25/0199 Page 3 January 24, 2025 Item 1 The Department informed Mr. Foley that it was withholding records responsive to Item 1 of his request, pursuant to Exemption (f) of the Public Records Law. Specifically, the Department stated that the responsive body camera footage contained recordings of civilian witnesses, and disclosure of said recordings would produce a chilling effect on future law enforcement efforts. Item 2 The Department informed Mr. Foley that it possessed no records responsive to Item 2 of his request. Item 3 With respect to Item 3 of Mr. Foley’s request, the Department stated that it could “… neither confirm or deny the existence of responsive records. Doing so, would reveal exempt information.” The Department further stated that such reports, if they existed, would be exempt from disclosure under Exemption (c). Items 4 and 5 The Department informed Mr. Foley that Items 4 and 5 of his request “… are not requests for records.” Current Appeals In his January 23, 2025 petition to this office, Mr. Foley requested that he be provided with unredacted copies of the police report responsive to his December 19th request and the body camera footage responsive to Item 1 of his January 6th request. 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

Christine O’Donnell, Esq. SPR25/0198; SPR25/0199 Page 4 January 24, 2025 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. Based on the Department’s response, I find that the Department has not met its burden to redact the records responsive to Mr. Foley’s December 19th request under Exemption (c) of the Public Records Law. Specifically, it is not clear how the redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Department must clarify these matters. 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.” Id. at 289-90.

Christine O’Donnell, Esq. SPR25/0198; SPR25/0199 Page 5 January 24, 2025 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. To the extent that the body camera footage responsive to Item 1 of Mr. Foley’s January 6th request contains the identifying information of voluntary witnesses, 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). Conclusion Accordingly, the Department is ordered to provide Mr. Foley 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. Foley 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: Brian Foley