Michaela Roberta Martin Strout v. Department of State Police (SPR 20250362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2025 SPR25/0362 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Attorney Michaela Roberta Martin Strout, of the Committee for Public Counsel Services Strategic Litigation Unit, 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 July 25, 2024, Attorney Elise M. Lambert, also of the Committee for Public Counsel Services Strategic Litigation Unit, requested “any and all internal affairs records regarding [a list of six individuals].” Previous Appeal This request was the subject of a previous appeal. See SPR24/2329 Determination of the Supervisor of Records (August 29, 2024). In my August 29th determination, I ordered the Department to provide a response to the request. Subsequently, the Department responded on December 9 and December 11, 2024. Unsatisfied with the Department’s responses, Attorney Stout petitioned this office, and this appeal, SPR25/0362, 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. 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 SPR25/0362 Page 2 February 20, 2025 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 December 9th and December 11th Responses In its December 9, and December 11, 2024 responses, the Department provided numerous responsive records in redacted form, and notes that it does not possess records for one of the individuals. The Department indicates that the records were redacted pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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 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.

Allison Mondello SPR25/0362 Page 3 February 20, 2025 In its December 11th response, the Department argues the following for redacting the responsive records: In IA file labeled IAS-2022-0002, the redactions relate to the identity of the named victim in the investigation. In IA file labeled IAS-2021-0057, the redactions are for a home address and a description of the facts in the arrest report. The redactions related to the description of the facts in the arrest report were done because they were related to a charge of domestic assault and battery. Pursuant to M.G.L. c. 41, section 97D, reports of domestic violence must be confidential. . . . As it relates to the files that were previously provided to you. The redactions related to the identity of civilian witnesses involved in Internal Affairs Investigations and the discipline imposed on Troopers. The Department is following the Appeals Courts guidance in the case of Worcester Telegram and Gazette Corp. v. Chief of Police of Worcster, 58 Mass.App.Ct. 1 (2003), as it relates to redactions of discipline imposed. The Appeals Court drew a distinction between internal affairs reports and discipline imposed. Specifically, the Appeals Court found that “while documents from the internal affairs investigation proper, including the interviews, the reports, the conclusions and recommendations, and the documenting of its results to the complainant are not so exempt. However, when considered in light of the purpose of the public records law, it is not at all illogical that the Legislature would intend the bricks and mortar of the investigation and the documenting of its results to the complainant to fall outside the exemption for “personnel [file] or information,” but would intend the actual order and notice of disciplinary action issued as a personnel matter from the chief to the target of the disciplinary investigation to be exempt.” Worcester Telegram & Gazette Corp. at 10. The Department is advised that the Supreme Judicial Court has held that 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, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. Based on the Department’s responses, where the responsive records concern internal affairs investigations of police officers, I find the Department has not shown how the redacted records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Department has not met its burden to redact the records pursuant to Exemption (c).

Allison Mondello SPR25/0362 Page 4 February 20, 2025 Conclusion Accordingly, the Department is ordered to provide Attorney Strout 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. Sincerely, Manza Arthur Supervisor of Records cc: Michaela Roberta Martin Strout, Esq.