Brian Foley v. Boston, City of - Police Department (SPR 20250340)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 13, 2025 SPR25/0340 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 petition 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). 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. 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. Prior Appeals These requests were the subject of prior appeals. See SPR25/0198 and SPR25/0199 Determination of the Supervisor of Records (January 24, 2025). In my January 24th determination, I found that the Department had not met its burden to redact responsive records under Exemption (c) of the Public Records Law, nor to withhold responsive records in their entirety under Exemption (f) of the Public Records Law. 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. SPR25/0340 Page 2 February 13, 2025 The Department provided a response on February 4, 2025. Unsatisfied with the response, Mr. Foley petitioned this office and this appeal, SPR25/0340, was opened as a result. Subsequent to the opening of this appeal, the Department provided a response on February 12, 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. The Department’s February 4th Response In its February 4, 2025 response, the Department provided Mr. Foley with a responsive police report, redacted under Exemptions (c) and (f) of the Public Records Law, and redacted body worn camera footage. The Department did not cite an exemption to justify its redactions of the body worn camera footage. Current Appeal In his February 5, 2025 petition to this office, Mr. Foley objects to the redaction of a suspect’s name from the responsive police report. Mr. Foley further objects to the redaction of the following portions of the responsive body worn camera footage: a conversation between two police officers “around the 8:20 mark,” comments by police officers to school personnel following the statement “criminal charges probably won’t help her,” and “basically everything the suspect says on the body camera.”

Christine O’Donnell, Esq. SPR25/0340 Page 3 February 13, 2025 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. In its February 4th response, the Department informed Mr. Foley that it had redacted information from the responsive police report which identified a particular suspect, pursuant to Exemption (c). To justify this redaction, the Department stated: The Department redacted out the name of the individual who police were questioning because the individual revealed medical information to the police officers. The police officers were asking the specifically named individual about the incident and their actions. The responsive record contains material, medical information, and information regarding a specific individual, the disclosure of which would be an unwarranted invasion of privacy. The disclosure of the redacted portions of the record would result in an unwarranted invasion of an individual’s privacy, causing personal embarrassment to a specifically named individual of normal sensibilities because the individual reveals information about their health. The record reveals intimate details of a highly personal nature because it relates to the individual’s medical condition and state of mind. Matters

Christine O’Donnell, Esq. SPR25/0340 Page 4 February 13, 2025 related to an individual’s health, well-being, and mental state are sensitive issues. This information is not available from other sources. Providing an unredacted copy of the incident report and disclosing the individual’s name would result in personal embarrassment to an individual because of the medical information and other information that was revealed to the officer. The Department redacted out the individual’s name to protect the individual from an unwarranted invasion of privacy. The public’s interest in obtaining an unredacted record does not substantially outweigh the seriousness of any invasion of privacy. PETA, 477 Mass. at 291, 292. In its February 12th response, the Department restated its arguments to justify the redaction of “personal identifying information from the body worn camera footage.” 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. 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

Christine O’Donnell, Esq. SPR25/0340 Page 5 February 13, 2025 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. In its February 4th response, the Department stated: Investigative officials are allowed to provide assurances of confidentiality to individuals even after an investigation is closed so that they will speak openly about matters under investigation. 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 and their statements 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 individuals and to prevent a chilling effect of future law enforcement efforts, the Department redacted the names of civilian witnesses because disclosure of this information would prejudice future law enforcement efforts; therefore, disclosure of the requested record is not in the public interest. In its February 12th response, the Department restated its arguments to justify the redaction of responsive body camera footage. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the Department to redact 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).

Christine O’Donnell, Esq. SPR25/0340 Page 6 February 13, 2025 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: Brian Foley