Todd Wallack v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 31, 2016 SPR16/608 Mr. Glenn M. Rooney, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Rooney: I have received the petition of Todd Wallack of The Boston Globe 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). Specifically, Mr. Wallack requested copies of eight (8) specifically identified "incident reports where the daily administrative journals indicate someone was taken into protective custody this year." In a response dated July 29, 2016, the Department denied his request, claiming that the responsive records may be withheld under Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(c)(f). 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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, § 1 0( 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Glenn M. Rooney, Esq. SPR16/608 Page 2 August 31, 2016 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department's July 29 response The Department provided this office umedacted copies of the responsive records for in camera review. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6). This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). I would like to thank the Department for its cooperation. Exemption (c) The Department claims the responsive records are exempt from disclosure under Exemption (c). 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, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). 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

Mr. Glenn M. Rooney, Esq. SPR16/608 Page 3 August 31, 2016 Dep't, 380 Mass. 623, 625 (1980). 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. Real Prop. Dep't ofBoston, 380 Mass. at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, 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). 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. SeeAttomey Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). In support of its Exemption (c) claim, the Department explains "[i]n addition to containing medical information, the Department in its reasonable judgment, believes that releasing this information would result in embarrassment to an individual of normal sensibilities." Exemption (f) The Department also appears to invoke Exemption (f) in support of its claim to withhold responsive records. 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 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

Mr. Glenn M. Rooney, Esq. SPR16/608 Page 4 August 31,2016 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 Department claims "releasing the requested material to [Mr. Wallack], even with the directly identifying information redacted, it is likely to lead to indirect identification of the involved parties." You further state "it is the Department's position that it is permitted to withhold the records in their entirety, since no amount of redaction would address both the privacy and direct/indirect identification (investigatory) concerns." Conclusion Upon review of these records in camera, I find that although certain identifying information within the responsive records may fall within Exemption (c) or Exemption (f), the Department withheld portions ofthe records to which the stated exemptions do not apply. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It should be noted that in his appeal petition, Mr. Wallack indicates he has no objections if the Department redacts "the individuals' names and other identifying information (as well as the names of witnesses)." I understand an attorney on my staff contacted you about this matter. Order Accordingly, whereas the Department has not met its burden to withhold the entirety of the records, the Department is hereby ordered to review the unredacted records and provide Mr. Wallack a revised response to his request for records, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any cover letter accompanying such response must be provided to this office. It is preferable to s nd an electronic copy of this response to this office at pre@sec.state.ma.us. visor of Records cc: Mr. Todd Wallack