Richard DiNatale v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords January 13, 2016 SPR16/008 Ms. Jennifer P. O'Neil, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney O'Neil: I have received the petition of Richard DiNatale appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Mr. DiNatale is an investigator for an insurer reviewing a death that occurred at the business of the insurer's client. The client's surveillance video was unable to be transferred directly to law enforcement, so an officer used a cell phone to take video of a monitor depicting the event. The client's surveillance system video is no longer available, and Mr. DiNatale seeks a copy of the officer's cell phone video. The Department chose to treat the request under the Public Records Law and denied the request in its entirety pursuant to Exemption (c), the privacy exemption to the Public Records Law. G. L. c. 4, § 7 (26) (c). Right ofA ccess In both his request to the Department and his petition to the Public Records Division Mr. DiNatale indicates that he is a private investigator working on behalf of Hanover Insurance Group who insures Hampton Inn!Hershall, LLC. As suggested above, Mr. DiNatale's status 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 of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). It is also important to note that Mr. DiNatale did not make his request pursuant to the Public Records Law. The Department chose to treat it as a request under the law and issued a denial pursuant to the privacy exemption. "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jennifer P. O'Neil, Esq. · SPR16/008 Page 2 January 13, 2016 by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26) (emphasis added). An attorney on my staff spoke with you in an effort to resolve this appeal. The purpose ofthis call was to assist Mr. DiNatale in obtaining a record that may be exempt from disclosure under the Public Records Law, but to which he may have an independent right of access. However, the Department maintains its position that the record may be withheld under Exemption (c). As a result, I will analyze its response under the Public Records Law. Exemption (c) In its December 30, 2015 response the Department withheld the surveillance footage in its possession pursuant to the privacy clause of Exemption (c) in the Public Records Law. G.L. c. 4, § 7(26)(c). Exemption (c) permits withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c), the privacy clause is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Real Property Dep't, 380 Mass. at 625; Torres v. Attorney General, 391 Mass. 1, 9 (1984). The second clause protects intimate details of a highly personal nature. Real Property Dep't, 380 Mass. at 625; see also Georgiou v. Comm'r of the Dep't oflndustrial Accidents, 67 Mass. App. Ct. 428, 432 (2006). Marital status, legitimacy of children, paternity, medical condition, governmental assistance, family disputes and reputation are some examples of the kind of information the second clause is designed to protect. Real Property Dep't, 380 Mass. at 626 n.2. In identifying the existence of privacy interests, the factors for consideration include: whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials sought contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. I d.; see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). Consequently, the

Ms. Jennifer P. O'Neil, Esq. SPR16/008 Page 3 January 13, 2016 application of the second clause of the exemption can only be determined on a case-by-case basis. The test of whether the information requested rises to the level of an unwarranted invasion of privacy rests on whether disclosure of the information would embarrass the reasonable person or whether it is the type of information that the average person might not share with others. Application of the privacy exemption requires a balancing between any claimed invasion of privacy and the public's interest in disclosure. In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2006) (emphasis added). Where the public interest in acquiring information significantly outweighs the seriousness of any invasion of privacy, the private interest in precluding disclosure must yield to the public interest. I d. Exemption (c) has been interpreted to mean "that if disclosure has any reasonable tendency to trespass on a legitimate concern of privacy, then the exemption prevents the disclosure." 1977 Mass. AG LEXIS 24 (Mass. AG 1977), see Belotti v. Cramer, supra. Recorded footage detailing the events of one's drowning is inherently personal in nature. Disclosure of such recorded events would result in embarrassment to an individual of normal sensibilities. The deceased family's privacy interests considerably outweigh the public's interest in disclosure. Accordingly, the Department may withhold the surveillance footage pursuant to the privacy clause of Exemption (c). Discovery The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its producti n). It may be preferable for Mr. DiNatale to access the responsive records through the judicia process given that copies of the records could be made available to him. ~ cc: Mr. Richard DiNatale