Judd Peskin, Esq. v. Executive Office of Public Safety & Security (SPR 20160661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/661 Ms. Shannon C. Sullivan, Esq. Assistant General Counsel Executive Office of Public Safety & Security One Ashb urton Place, Room 213 3 Boston, MA 02108 Dear Attorney Sullivan: I have received the petition of Judd L. Peskin, Esq. of Peskin, Courchesne, & Allen, P.C. on behalf of his specifically-named client appealing the response of the Executive Office of Public Safety and Security (EOPSS) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Peskin requested a copy of the investigation report prepared by the Department of State Police regarding a November 30, 2015 incident involving a specifically-named individual allegedly injured at the Western Massachusetts Police Academy. EOPSS provided a copy of the report in a redacted format pursuant to Exemptions (c) and (f) of the Public Records Law. Attorney Peskin represents the allegedly injured person; he appealed the redactions, as well as provision of photos as he believes other photos may be available. Attorney representing a person subject of a public record provides no unique right of access Attorney Peskin identified himself as an attorney representing the allegedly injured person who is the subject of the report. The Public Records Law does not distinguish between requesters. The statute does not provide a "standing requirement" and provides no unique right of access to a record that contains exempt material; the law extends the right to examine to any person whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Attorney Peskin's status as an attorney representing an individual related to the matter provides no greater right of access to records under the Public Records Law than any other person in the public realm. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Shannon C. Sullivan, Esq. SPR16/661 Page2 September 16, 2016 The Public Records Law is meant to provide broad access to records; other avenues are available for persons seeking information that would be exempt to the general public The discovery processes and the Public Records Law are distinct and independent venues 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, it does not mean that a party cannot obtain the same records through discovery processes. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Attorney Peskin may wish to avail himself of the discovery process through the courts of the Commonwealth to assist him in obtaining un-redacted or less redacted versions ofthe responsive records. Exemptions cited by EOPPS in its response to a public records request To assist Attorney Peskin in his understanding of the applicability of the exemptions, I will examine the response ofEOPPS to his request for public records. In your written response that accompanied the redacted report and photographs provided to Attorney Peskin, you explained that certain responsive information was redacted pursuant to Exemptions (c) and (f) of the Public Records Law. 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 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. ChiefMedical Examiner, 404 Mass. 132, 135 (1987).

Ms. Shannon C. Sullivan, Esq. SPR16/661 Page 3 September 16, 2016 In your letter and in a telephone conversation with an attorney on my staff, you explained that EOPPS withheld medical information regarding specifically identified persons pursuant to the first clause of Exemption (c). I find that EOPPS is permitted to redact portions of the responsive records containing such medical information. Exemption (f) Exemption (f) permits 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). Among other things, Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. The disclosure of the names and identifying information of witnesses may deter other potential witnesses and citizens from coming forward and providing information in future investigations. I find, therefore, that EOPPS acted within its discretion in redacting portions of the responsive records that contain the name and identifying details of witnesses. Conclusion It is my understanding that you are willing to review the responsive records to determine whether any other photographs are available, including any color digital photographs. Should such photographs be available EOPPS is hereby ordered to provide a written response to Attorney Peskin with respect to such photos. A copy of any such response must be provided to

Ms. Shannon C. Sullivan, Esq. SPR16/661 Page4 September 16, 2016 this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. I otherwise find EOPPS properly redacte the responsive records. Supervisor of Records cc: Mr. Judd L. Peskin, Esq.