Bertsche, Robert v. Amherst, Town of - Police Department (SPR 20150581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2015 SPRlS/581 Captain Jennifer A. Gunderson Town of Amherst Police Department 111 Main Street Amherst MA 01 002 Dear Captain Gunderson: I have received the petition of Peter J. Caruso II, Esq., appealing the response of Town of Amherst Police Department (Department) to the Daily Hampshire Gazette's request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, the Dailey Hampshire Gazette requested a copy of an accident report concerning an accident occurring on April12, 2015 at the intersection of Main and South Pleasant Street. In a response date April 29, 2015 the Department provided the records responsive to the request with certain information redacted. In support of its decision to redact information from the responsive records the Department cited to the Health Insurance Portability and Accountability Act of 1996 (HIPP A), and Exemption (c) the privacy exemption to 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, § 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 requested record. G. L. c. 66, § 10 ( 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 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 Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The Department's response cited to Exemption (c) and HIPP A but did not specify how disclosure of the information, as requested, would disclose medical and privacy information or how provisions of HIPPA would operate by way of any exemption to the Public Records Law. 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 redacted portions of the requested record is public. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Captain Jennifer A. Gunderson SPR15/581 Page two October 6, 2015 The response by Department did not contain the specificity required in a denial of access to public records. Accordingly, the Department is advised that to comply with the Public Records Law and Regulations it 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. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) days ofthis order, to provide Attorney Caruso with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Attorney Caruso a written explanation, with specificity, how a particular exemption applies to each record or portion thereof. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma. us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you ' ust provide the responsive records. / cc: Peter J. Caruso II, Esq.