Rousseau, John v. Lancaster, Town of - Police Department (SPR 20140274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 2, 2014 SPR14/274 Ms. Francine Moody Administrative Secretary Town of Lancaster Police Department 1053 Main Street Lancaster, MA 01523 Dear Ms. Moody: I have received the petition of John D. Rousseau appealing the May 21, 2014 response of the Lancaster Police Department (Department) to his December 7, 2013 request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Rousseau requested records related to an incident that occurred in the Town of Lancaster (Town) on April 22,2006. Timeliness of response; method of receipt of records It is important to note that the Department's response was not made in compliance with the timeliness requirements of the Public Records Law and its Access Regulations (Regulations). The Department's response is dated May 21, 2014, one-hundred and sixty-five (165) days after Mr. Rousseau's original request. G. L. c. 4, § 7 (26); 950 C.M.R. 32 et seq. A record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The Department is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Regulations. In addition, Mr. Rousseau indicates in his appeal that the Department may have demanded that he pick up records from the Department in person. There is no provision of the Public Records Law that permits a records custodian to make such a requirement. I acknowledge that the Department, subsequent to the intervention of this office, did respond in writing and provided the responsive records, with a waiver of applicable fees. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Francine Moody SPR14/274 Page Two September 2, 2014 Specificity required in response The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Cornrn'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Department stated that certain records would not be provided, as they contain "confidential patient information." While the Department did not cite a specific exemption, I will infer that the Department intended to withhold medical information pursuant to the first clause of Exemption (c) of the Public Records Law. Exemption (c) of the Public Records Law contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. ofWestport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 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 Medical Examiner, 404 Mass. 132, 135 (1987). Accordingly, while I find the Department acted within its discretion in withholding medical information, you are advised that to comply with the Public Records Law and Regulations you must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Right ofA ccess Please note that the personal status of Mr. Rousseau in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances ofthe requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the provision of any waiver by Mr. Rousseau or other persons does not change the status of the requested records.

Ms. Francine Moody SPR14/274 Page Three September 2, 2014 Conclusion Whereas the responsive records have been provided, and further whereas Mr. Rousseau has no unique right of access under the Public Records Law to the withheld records, I will consider this administrative appeal closed. Supervisor ofRecords cc: Mr. John D. Rousseau