Erin Smith v. Foxborough, Town of - Police Department (SPR 20160092)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords February 17, 2016 SPR16/034; SPR16/092 Mr. William G. Keegan, Jr. Town Manager Town ofFoxborough 40 South Street Foxborough, MA 02035 Dear Mt. Keegan: I have received the petition of Erin Smith of the Boston Herald appealing the response of the Town ofFoxborough (Town) to requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested, and received, a copy of a dispatch record for Sunday, January 10, 2016 from the Town Police Department (Department). Ms. Smith indicated "some of the record or information in the dispatch log was permanently modified or deleted." Ms. Smith also requested a copy of a video of the exterior of the Department from January 10, taken "from 7:38a.m. to 8:20a.m." In a January 20, 2016letter the Town Manager provided a description of all responsive records, including the video. The Town deemed the video exempt from disclosure pursuant to the Health Insurance Portability and Accountability Act (HIP AA) as well as the public safety and privacy exemptions to the Public Records Law. G. L. c. 4, § 7 (26) (c), (n). Ms. Smith appealed this response as well. As the records are related I will provide one written determination. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. William G. Keegan, Jr. SPR16/034; 16/092 Page 2 February 17, 2016 Dispatch log In its January 20 letter the Town explains, "[a] single word was deleted from the Police Dispatch Log and was replaced by a generic term indicating the nature of the evaluation undertaken by Town responders at the scene." Further, the Town states "[t]his revision was made because the original word used in the Log was indicative of, or specified a certain type of, medical diagnosis which Town Police responders were unqualified to make under the circumstances presented." In a conversation with an attorney on my staff, Town Counsel Patrick J. Costello, Esq., of the firm Louison, Costello, Condon & Pfaff, LLP explained that the Department considered the change a correction; further stating that it is common for the Department to make such corrections. Attorney Costello confirmed that the omitted word is no longer available and was not retained. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). The Town is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a). I find the Department satisfied a request for public records in providing a copy of the dispatch log as amended. Surveillance video In the January 20 letter the Town explains it is withholding responsive surveillance video under HIP AA and Exemption (n). In an email to this office, Attorney Costello confirmed the Town is also withholding the video under Exemption (c) because release of the video would "unduly encroach upon the privacy rights or interests of an individual. ... " Exemption (c) permits the 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. 427,432-33 (1983). 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

Mr. William G. Keegan, Jr. SPR16/034; 16/092 Page 3 February 17, 2016 Property Dep't, 380 Mass. at 625; Torres v. Attorney General, 391 Mass. 1, 9 (1984). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). The types of personal information which the second clause ofthis exemption is designed to protect includes: marital status, medical condition, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; 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). 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. See Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). 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). 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). The test ofwhether 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. In the January 20 letter, the Town indicates the "security video provides a visual record of medical or personal information of a highly sensitive nature, the release of which would unduly encroach upon the privacy rights or interests of an individual who voluntarily came to the Public Safety Building seeking medical assistance." In an email to this office dated February 10, 2016, Attorney Costello explained it is the Town's position that release ofthe video would add nothing to the written reports the Town previously provided, further stating that the privacy interests of the individual depicted in the video outweigh the public interest in disclosure. I agree.

Mr. William G. Keegan, Jr. SPR16/034; 16/092 Page4 February 17, 2016 Disclosure of the responsive video recording would result in embarrassment to an individual of normal sensibilities. I find the individual's privacy interests in this matter outweigh the public's interest in disclosure. Further, I find the substantial public interest has been satisfied by the disclosure of several information releases on the incident by the Town. Accordingly, the Department may withhold the surveillance video pursuant to the second clause of Exemption (c). As a result, I will not opine on the Department's other exemption claims. Conclusion For the reasons discussed above, I will consider this appeal closed. To assist the Town and Department I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Enclosure cc: Ms. Erin Smith Mr. Patrick J. Costello, Esq.