Michael Brandi v. Dennis, Town of - Police Department (SPR 20251686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2025 SPR25/1686 Lieutenant Thomas Murray Commander of Support Services Dennis Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear Lieutenant Murray: I have received the petition of Michael A. Brandi, Esq. appealing the response of the Dennis 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 13, 2025, Attorney Brandi requested “…all police reports, witness statements, incident reports, or other like records which relate to any of the following [identified individuals]. This request seeks records from February, 2024.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0944 Determination of the Supervisor of Records (April 22, 2025). In my April 22nd determination, I ordered the Town of Dennis to clarify its claims to withhold responsive body worn camera footage under Exemptions (c) and (f) of the Public Records Law. The Department responded on May 7, 2025 and May 29, 2025. Unsatisfied with the Department’s responses, Attorney Brandi petitioned this office and this appeal, SPR25/1686, was opened as a result. While this appeal was pending, the Department provided a supplemental response on June 26, 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). 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

Lieutenant Thomas Murray SPR25/1686 Page 2 June 27, 2025 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 May 7th, May 29th, and June 26th Responses In its May 7, 2025 response, the Department stated, “[a]fter review by the Supervisor of Records and the Police Department’s further good faith efforts; the Town will provide officer’s body worn camera video. As previously stated, this video will contain redactions under Exemptions (e) and (f) of the Public Records Law. However, the Police Department will need additional time to properly redact and prepare the video. We will reach out as soon as the record is available.” On May 29, 2025, a Department official stated, “I have the flash drive with the redacted body camera footage ready for you, would you want to pick that up at the station or have it mailed to you, it is too large to fit in email[.]” Attorney Brandi confirmed that he “received the flash drive a few days later.” In a supplemental response provided to this office and Attorney Brandi on June 26, 2025, the Department stated: I apologize there was a typo in my previous response. It should have stated the Dennis Police Department was providing Body-Worn Camera video with redactions due to Exemptions (c, not e) and (f) of the Public Records Law. These exemptions were named in the original denial letter and still apply to our decision. Current Appeal In his appeal petition, Attorney Brandi states: …[T]he Town has provided one record so far, a largely redacted body camera video. I have inquired with the Town and there is a second body camera responsive to the request that is currently being reviewed by the Town. In the meantime, I would like to appeal the redactions applied to the first video. The basis for my appeal is the same as was previously submitted. However, I would like to specifically emphasize that the disclosed portions of the video reveal that most of the redactions are applied to footage which was recorded outdoors, in

Lieutenant Thomas Murray SPR25/1686 Page 3 June 27, 2025 public, on and around public ways. The law is clear that there is no expectation of privacy in such areas. Indeed, a member of the public recording on their own device could have captured all of the redacted information which was recorded outside. Further, I have since learned that the subject video may have been disclosed by the Town to one or both of the individuals involved in this matter. I have not been able to confirm this, but if the Town has disclosed the video in unredacted form, it must also be disclosed to me in the same form… In reply to the Department’s supplemental response, Attorney Brandi reiterated the arguments made in his appeal petition, and added, “…someone’s intoxication and/or use of intoxicating substances is not ‘medical information’ under the applicable provision. The town has also not addressed the decreased expectation of privacy for elected officials.” 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. 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).

Lieutenant Thomas Murray SPR25/1686 Page 4 June 27, 2025 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. In its June 26, 2025 response, the Department asserts: …the BWC recordings, which include medical information and details of a highly personal nature regarding specifically identified individuals the identity of which is known to you (based on the request provided), cannot be disclosed given the privacy interests involved pursuant to Exemption (c) of the Public Records Law… [B]ased on the content of the BWC footage, the privacy interests of individuals known to you based on your request would be invoked, given the medical information and details of a highly personal nature conveyed in the BWC recordings, therefore, the video will be redacted... 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, 378 Mass. at 290 n.18. 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.

Lieutenant Thomas Murray SPR25/1686 Page 5 June 27, 2025 The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens 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 observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. In its original denial letter, which the Department referenced in its June 26, 2025 response, the Department argued under Exemption (f), “[h]ere, information conveyed by voluntary complainants and witnesses during the matter in BWC footage cannot be redacted to sufficiently shield the information voluntarily provided to responding police.” Susbequently, in its June 26, 2025 response, regarding both Exemptions (c) and (f), the Department stated, “[t]o date, the Police Department has not received authorization from the individual(s) involved in this matter, and as such, the unredacted BWC footage cannot be provided…” In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to redact the requested body worn camera footage pursuant to Exemptions (c) and (f) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the record, I will return it to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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). 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

Lieutenant Thomas Murray SPR25/1686 Page 6 June 27, 2025 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 record may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the body worn camera footage for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Michael A. Brandi, Esq.