Brian Foley v. Boston, City of - Police Department (SPR 20250885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2025 SPR25/0885 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 and In Camera Review These requests were the subject of prior appeals and a subsequent in camera review. See SPR25/0198; SPR25/0199 Determination of the Supervisor of Records (January 24, 2025) and SPR25/0340 Determination of the Supervisor of Records (February 13, 2025; March 11, 2025). In my March 11th determination, I found that the Department had met its burden to justify only 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. SPR25/0885 Page 2 April 10, 2025 certain redactions under Exemptions (c) and (f) of the Public Records Law, and ordered the Department to provide Mr. Foley with a further response. The Department provided a response on March 25, 2025. Unsatisfied with the response, Mr. Foley petitioned this office and this appeal, SPR25/0885, 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. 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 March 25th Response In its March 25, 2025 response, the Department restated its position that all of its redactions were justified under Exemptions (c) and (f) of the Public Records Law, and provided further details in support of its position. Current Appeal In his April 1, 2025 petition to this office, Mr. Foley stated his belief that certain portions of the responsive records should not be redacted. Specifically, Mr. Foley sought “… the conversation amongst the two police officers and all statements made by the suspect on the body camera footage.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Christine O’Donnell, Esq. SPR25/0885 Page 3 April 10, 2025 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. 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). 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 March 25th response, the Department stated: The Department only redacted personally identifiable information related to specific individuals under Exemption C of the Public Records Law. 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.” See G.L. c. 4, § 7 (26) (c). In the March 11th Determination, the Supervisor acknowledged that the Department met its burden to redact personal telephone numbers of private citizens, references to the medical information of an identified individual, and certain information relating to an identified minor under

Christine O’Donnell, Esq. SPR25/0885 Page 4 April 10, 2025 Exemption (c) but the Department did not meet its burden to justify the remainder of its redactions. The remainder of the redactions made by the Department references the medical information of an identified individual, information relating to a minor, and family circumstances and reputation. No other information was redacted. The redactions and muted conversations reference the aforementioned matters and as such fall under Exemption (c) … The redacted portions of the records reveal intimate details of a highly personal nature because they relate to the individual’s medical information, state of mind, family circumstances and reputation. Matters related to an individual’s health, well-being, mental state, and family matters are sensitive issues. This information is not available from other sources. The Department blurred the individual’s image and muted statements relating to the individual’s health and family situation made by the individual, witnesses, and police officers to prevent an unwarranted invasion of privacy. The public’s interest in obtaining an unredacted record does not substantially outweigh the seriousness of any invasion or [sic] privacy. Based on the Department’s response, and where the responsive records contain the personal medical information of an identified individual and intimate details of a highly personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy, I find that the Department has met its burden to redact the responsive records under Exemption (c). 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-

Christine O’Donnell, Esq. SPR25/0885 Page 5 April 10, 2025 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 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. Where the Department has met its burden to redact the contested portions of the responsive records pursuant to Exemption (c) of the Public Records Law, I decline to opine on the applicability of Exemption (f) to the responsive records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Foley 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Brian Foley