John M. Thompson, Esq. v. Springfield, City of - Office of the City Clerk (SPR 20160521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 4, 2016 SPR16/520; SPR16/521 Mr. Anthony I. Wilson, Esq. City Clerk City of Springfield 36 Court Street Springfield, MA 01103 Dear Clerk Wilson: I have received the petition of John M. Thompson, Esq. appealing the response of the City of Springfield-Office of the City Clerk (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, April27, 2016, Attorney Thompson requested copies of records related to an investigation into the death of a specifically identified individual, including a police report, internal affairs records, and witness statements (Request 1) (SPR16/520). In addition, on May 26, 2016 Attorney Thompson requested copies of "all records" ofthe arrest of the same specifically identified individual on a certain day (Request 2) (SPR16/521 ). Attorney Thompson appealed the responses to these requests. In light of the similar nature of these requests, I will address both appeals in this determination. 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Anthony I. Wilson, Esq. SPR16/520; SPR16/521 Page 2 August 4, 2016 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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. Purpose of request; identity of requester In his petition and in a conversation with an attorney on my staff, Attorney Thompson indicated his intent to obtain the requested records on behalf his client. Please note that the reason for which a requestor seeks access to or a copy of a public record 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. ChiefofPolice of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Thompson's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the 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 while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Thompson may wish to consider another means of seeking to obtain any existing responsive records. Request 1 (SPR161520) In his appeal petition, Attorney Thompson indicated the City had yet to substantively respond to Request 1. Subsequent to the opening ofthis appeal, the City provided Attorney Thompson and this office a copy of a May 13, 2016 letter that appears to respond to Request 1. In this response, the City provided certain responsive records with portions redacted and denied access to "American Medical Response records." The City redacted and withheld records under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c).

Mr. Anthony I. Wilson, Esq. SPR16/520; SPR16/521 Page 3 August 4, 2016 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). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 434, 438. 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. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 156 (1979). The City's May 13 response merely cites the exemption without any further explanation of the exemption's applicability to the responsive records. As a result, the City has not demonstrated how it may redact or withhold records responsive to Request 1 under Exemption (c). Request 2 (SPR161521) In a letter dated June 13, 2016, the City responded to Attorney Thompson's Request 2. The City denied access to responsive records, claiming they are exempt from disclosure under the Exemptions (a) and (f). Exemption (a) The City claims the responsive records may be withheld under the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a) ofthe Public Records Law. G. L. c. 6 §§ 167, 172.

Mr. Anthony I. Wilson, Esq. SPR16/520; SPR16/521 Page 4 August 4, 2016 Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Collector of Lynn, 3 77 Mass. at 154; Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. General Chern. Corp. v. Dep't ofEnvtl. Quality Eng'g, 19 Mass. App. Ct. 287 (1985). The applicable CORI statute permits the withholding of certain records pursuant to Exemption (a) and is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. c. 6, § 167 I find the City's response does not meet its burden of explaining how the entirety of the responsive records fall under CORI, particularly in light of the fact that the individual is deceased. See G.L. c. 6, § 178B. Accordingly, I find the City has failed to meet its burden to withhold responsive records under CORI as it operates through Exemption (a). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Mr. Anthony I. Wilson, Esq. SPR16/520; SPR16/521 Page 5 August 4, 2016 disclosure would not be in the public interest G. L. c. 4, §7 (26)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.l8 (1979). The City's June 13 response merely cites the exemption without any further explanation of the exemption's applicability to the responsive records. As a result, the City has not demonstrated how it may withhold the entirety of the records under Exemption (f). Conclusion I find the City has not met its burden of specificity with respect to the applicability of cited exemptions to the responsive records. Accordingly, the City is hereby ordered to provide Attorney Thompson a response to Request 1 and Request 2, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state.ma. us. Supervisor of Records cc: Mr. John M. Thompson, Esq. Mr. Edward M. Pikula, Esq.