Bosco, Eric v. Amherst, Town of - Police Department (SPR 20150140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords April16, 2015 SPRlS/140 Captain Jennifer A. Gunderson Town of Amherst Police Department 111 Main Street Amherst, MA 01002 Dear Captain Gunderson: I have received the petition of Eric Bosco appealing the response of the Town of Amherst (Town) Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Bosco requested a copy of an incident report for a specific incident that occurred in the Town, involving "a drug overdose/suicide." Mr. Bosco requested this incident report "with the name and identifying information redacted." The Department denied this request, stating that the matter "is currently an open and ongoing investigation," further explaining the record would be withheld to protect "intimate details of a highly personal nature," as well as the disclosure of"medical or injury information." G. L. c. 4, § 7 (26) (c), (f); see also Health Insurance Portability and Accountability Act of 1996 (HIPAA). Mr. Bosco appealed the withholding of the report in its entirety, restating his interest in obtaining the report "with the name and all identifying information redacted." In his appeal Mr. Bosco noted that he is a journalist seeking to obtain the incident report in an effort to inform the public regarding what he calls an "opiate crisis" in Massachusetts. It is important to note that 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 of the requester. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, the status and interest of Mr. Bosco will play no part in determining the public status of the record he requested. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma.us/pre

Captain Jennifer A. Gunderson SPR151140 Page Two April16, 2015 requested record. G. L. c. 66, § lO(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department's response cited exemptions but did not explain how disclosure of the information, as requested, would disclose investigatory or privacy information. As of the date of this order no further details have been submitted by the Department in support of its position or to overcome the presumption that the requested record is public, with redactions as requested. Therefore, I find that the presumption stands and the records must be made available in accordance with the Public Records Law. The Department is hereby ordered, within ten (1 0) days, to review the requested incident report, redact identifiable information where necessary, and provide Mr. Bosco with the responsive records accompanied by a cover letter with information to support the redactions. If the Department is planning to charge Mr. Bosco for the cost of complying with his public records request, he must be provided with a written, go d faith estimate. Once the Department receives the estimate funds, the records must ovided to Mr. Bosco. This administrative appeal is now closed. illiams Supervisor of Records cc: Mr. Eric Bosco