Chris Connolly v. Boston, City of - Police Department (SPR 20250227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 4, 2025 SPR25/0227 Christine O’Donnell, Esq. Assistant Corporation Counsel City of Boston – Police Department One City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Attorney Chris Connolly 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 December 13, 2024, Attorney Connolly requested, “a copy of any body worn camera footage of [an identified police officer], and any of his Boston Police colleagues related to the incident documented with Offense/Incident Report I242036456.” The Department responded on January 23, 2025, denying access to the responsive records. Unsatisfied with the response, Attorney Connolly petitioned this office and this appeal, SPR25/0227, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR25/0227 Page 2 February 4, 2025 The Department’s January 23rd Response In its January 23, 2025 response, the Department cited Exemptions (c) and (f) of the Public Records Law to withhold responsive records. Current appeal In his appeal Attorney Connolly states: [t]his incident has been subject of numerous school meetings with Boston Public Schools. There is no basis whatsoever to say that the identities of the people involved in the incident aren’t already known by the Parents and that the involved school official names should be kept secret. The body worn camera footage is a matter of significant public interest that being the school’s actions during the medical incident. There is no investigation, certainly no criminal investigation to this incident. The requested information is about an incident with Boston Public Schools calling for an EMS transportation for the student . . ., my clients’ minor daughter, for an alleged mental health issue. The incident was considered a medical event-coded in the incident report as ‘Sick Assist’ in page 2 of the incident report… The burden is on the Government to assert a privilege and simply citing a rule is not doing so. If there is in fact a criminal investigation as the Government is saying, the Government should expound upon what they [are] referring to and provide proof. 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

Christine O’Donnell, Esq. SPR25/0227 Page 3 February 4, 2025 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). This exemption requires 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. Under Exemption (c), the Department stated, “[t]he Department is . . . denying your request under Exemption C in order to maintain the privacy of civilian witnesses. Pursuant to [Exemption (c)], personal identifying information relating to specific individuals may be withheld to protect their privacy. The 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.” The Department’s response did not contain the specificity required in a denial of access to public records. Based on the Department’s response, it is unclear how the withheld records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. 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. 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

Christine O’Donnell, Esq. SPR25/0227 Page 4 February 4, 2025 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 289-290. 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. Under Exemption (f), the Department stated the following: [t]he responsive records depict police officers speaking with civilian witnesses. The Department is withholding the records pursuant to Exemption (f) in order to maintain the confidentiality of witnesses and their statements… The ability of police departments to communicate with individuals and potential witnesses and to develop trust is essential to the investigatory process and effective law enforcement. Disclosing the identity of witnesses may discourage individuals from communicating with the police. If individuals and police departments are not able to communicate freely, the investigatory process will be harmed. Identifying citizens who participate in the investigatory process will have a chilling effect on future law enforcement efforts. To protect the confidentiality of civilian witnesses and to prevent a chilling effect of future law enforcement efforts, the Department is withholding the body worn camera footage in its entirety because disclosure of this information would prejudice future law enforcement efforts; therefore, disclosure of the requested record is not in the public interest. Based on the Department’s response, it is unclear how the records, in their entirety, can be withheld under Exemption (f). The Department did not provide adequate supporting information to 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). In addition, it is not clear from the Department’s response, how the records cannot be redacted to preserve the confidentiality of complainants and voluntary witnesses. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt,

Christine O’Donnell, Esq. SPR25/0227 Page 5 February 4, 2025 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 Attorney Connolly 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. Sincerely, Manza Arthur Supervisor of Records cc: Chris Connolly, Esq.