Makalah Lacy v. Boston, City of - Police Department (SPR 20250618)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2025 SPR25/0618 Grace Jung Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Makalah Lacy 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 March 19, 2021, Ms. Lacy requested, through her attorney at the time, Arielle Sharma, Esq., “all records related to [a named individual] and incidents originating at [a specified] Boston apartment complex [on five particular dates].” On March 23, 2021, Ms. Lacy further requested “all body camera footage by Boston police officers, 911 calls and BEMS or any other records for [certain] dates regrading incidents” with an identified individual. I understand the Department assigned reference numbers R000518-032321, B001575-052324, B001098- 041624 to these requests. Previous Appeals This request was the subject of previous appeals. See SPR21/1012 Determination of the Supervisor of Records (May 5, 2021); SPR21/1150 Determination of the Supervisor of Records (May 14, 2021); SPR21/1527 Determination of the Supervisor of Records (June 29, 2021); SPR24/1141 Determination of the Supervisor of Records (April 30, 2024) and SPR24/2766 Determinations of the Supervisor of Records (October 18, 2024 and February 25, 2025). In my February 25th determination, following in camera review, I found that the Department had not met its burden to show that all of the redacted information in the responsive transcripts may be redacted under Exemptions (c) and (f). Subsequently, the Department responded on March 4, 2024. Unsatisfied with the Department’s response, Ms. Lacy petitioned this office, and this appeal, SPR25/0618, was opened as a result. 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

Grace Jung SPR25/0618 Page 2 March 17, 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. Current Appeal In her appeal petition, Ms. Lacy argues the following: [T]he redactions remain overly broad, and no privilege log has been provided to justify them and that in any the full log of the entire transcript or even the transcript in question. Massachusetts Public Records Law requires a clear explanation for each redaction, yet this response lacks sufficient detail. Additionally, the response does not account for several other missing transcripts and documents that should have been provided. I have attached files from discovery that include: • Multiple transcripts from March 3rd and March 8th • Police logs • Names of officers involved see attached document detailing some of those officers that was not provided back in 2021 and evening so officers are still missing. And the city is still refusing to provide all of them • Other records that were explicitly requested but not disclosed[.] Records in Existence; No Duty to Answer Questions Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Grace Jung SPR25/0618 Page 3 March 17, 2025 As noted in multiple prior determinations, the Department has previously confirmed that it does not possess additional responsive records. See SPR24/1141 Determination of the Supervisor of Records (April 30, 2024) and SPR24/2766 Determination of the Supervisor of Records (October 18, 2024). Where the Department previously confirmed that it does not possess additional responsive records, and is not required to answer questions or create records in response to a public records request, I find that those portions of Ms. Lacy’s appeal are resolved. Issues Outside the Authority of this Office In correspondence to this office subsequent to the opening of this appeal, Ms. Lacy further argues the following regarding the Department’s response to her request: I am writing to formally appeal the recent release of records by the City of Boston, which were uploaded to a public portal in violation of public records laws and my right to privacy. The records uploaded are not public records and contain my Massachusetts identification number, personal medical files, and private medical information. This release constitutes a serious breach of my privacy, especially considering that I have an ongoing legal matter against the City of Boston, in which I am identified as Jane Doe to protect my identity. The City’s unauthorized disclosure of my private information appears to be a deliberate act of doxxing, intended to expose my identity in retaliation for my legal claims. Furthermore, none of the records that were publicly released correspond to the actual public records request I submitted. Instead, the City has chosen to upload sensitive personal information, which has no legitimate public interest and violates both state and federal privacy laws. Please be advised that the Office of the Supervisor of Records is statutorily empowered with the authority to determine the public record status of government records. See G. L. c. 66, § 10. Further, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has been alleged. See G. L. c. 66, § 10A(a). Please note that the concerns raised in this portion of Ms. Lacy’s appeal are outside the jurisdiction of this office. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. Ms. Lacy is advised that she may wish to seek advice from private legal counsel concerning these matters. The Department’s October 4th and March 4th Responses In its March 4, 2025 response, the Department provided responsive transcripts in redacted form, and argues the following: [T]he Supervisor held that the Department properly redacted medical information of a personal nature that relates to specifically named individuals under Exemption C and that the Department properly redacted the identifying

Grace Jung SPR25/0618 Page 4 March 17, 2025 information of voluntary witnesses under Exemption F. See SPR24/2766 Determination of the Supervisor of Records (February 25, 2025). The supervisor further opined that the Department did not meet its burden to show that all of the redactions were proper under Exemption C and Exemption F, particularly the locations of incidents and the identities of responding units. Based on the Supervisor’s determination and recognizing that the statutory exemptions must be narrowly construed, the Department is providing the transcripts with limited redactions. The transcripts with the turret tapes include information that is not responsive to this request because the turret tapes take in other calls. In these transcripts, the Department redacted locations and information that is not responsive to this request including references to Section 12 and references to firearms with description of suspects that are not responsive to this request. The Department stands by its previous redactions of medical information and identifying information of voluntary witnesses. In its October 4, 2024 response, the Department also cited Exemptions (c) and (f) of the Public Records Law for redacting responsive 911 call transcripts. See G. L. c. 4, § 7(26)(c), (f). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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

Grace Jung SPR25/0618 Page 5 March 17, 2025 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 October 4th response, under Exemption (c), the Department explains the following: The Department also provided you with 911 calls. Pursuant to G.L. c. 66 §10 and G.L. c. 4 §7(26)(c), personal identifying information relating to specific individuals has been removed 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. 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.” See Reinstein, 378 Mass. at 289-90. 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

Grace Jung SPR25/0618 Page 6 March 17, 2025 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. In its October 4th response, under Exemption (f), the Department argues the following: The Department also redacted information in the 911 calls in order to maintain the confidentiality of witnesses pursuant to Exemption F of the Public Records Law. . . . The Department recognizes that Exemption (f) does not create a blanket exemption of all investigative materials created and maintained by police departments. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. Dist. Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990). Exemption (f) does not exempt all investigatory materials, but rather requires a case by case analysis of whether disclosure would probably so prejudice the possibility of effective law enforcement that releasing the records is not in the public interest. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). An essential part of the investigatory process includes a dialogue between police departments, individual citizens and potential witnesses. Exemption (f) contemplates that individual citizens should be encouraged to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observation, hypotheses and interim conclusions. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). 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 or individuals calling the police may discourage individuals from communicating with the police if their names were subject to public disclosure. If individuals and police departments are not able to communicate freely, the investigatory process will be harmed. To protect the confidentiality of individuals and to prevent a chilling effect of future law enforcement efforts, the Department is redacting 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. Based on the Department’s March 4th response, and in conjunction with the Department’s previous October 4th response and my previous in camera review, I find that the Department has met its burden to redact the responsive transcripts pursuant to Exemptions (c) and (f) of the

Grace Jung SPR25/0618 Page 7 March 17, 2025 Public Records Law. See G. L. c. 4, § 7(26)(c), (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Lacy is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Makalah Lacy