Thomas Relihan v. Montague, Town of - Board of Selectmen (SPR 20160750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 30,2016 SPR16/750 Mr. Brian M. Maser, Esq. KPLaw,P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Maser: I have received the petition of Tom Relihan, a Reporter for The Recorder appealing the response of Town of Montague (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Relihan requested a copy of: 1. Minutes ofthe executive session meeting held on June 27, 2016, 2. Emails, memos or other correspondence between March 1 through August 15, 2016 between town employees in Town Hall, the Town's Police Department (Department) and the Town's Board of Selectmen referencing the Department's drug drop-off box, emptying the box and the Department's participation in the Northwestern District Attorney's Anti-Crime Task Force, 3. The protocol for handling the drug drug-off box, including accessing, emptying or removing items from the box for storage in another location, chain of custody, and a list of all department personnel with keys or other access to the box, 4. The contract ofPolice Chief Charles Dodge, and 5. Camera footage from the Department's public lobby showing the Department's drug drop-off box between April1 and June 27, 2016. Enclosed with an August 29, 2016 written response, you provided, as the Town's Legal Counsel, records responsive to Mr. Relihan's requests numbered (2), (3) and (4). The Town withheld the executive session minutes (request 1) pursuant to the Open Meeting Law (OML) as it operates through Exemption (a) of the Public Records Law, and the camera footage (request 5) pursuant to Exemption (c) of the Public Records Law. Mr. Relihan filed an OML complaint to the Open Government Division of the Office of the Attorney General, and petitioned this office for an administrative appeal under the Public Records Law regarding the executive session minutes and the camera footage. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Brian M. Maser, Esq. SPR16/750 Page2 September 30, 2016 Request ]-minutes ofthe executive session meeting held on June 27,2016 Whereas an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the status of executive session minutes, as there has not yet been a determination as to whether the lawful purpose for entering executive session has concluded. See G. L. c. 30A, § 23. Request 5-camera footage from drug drop-off box The Town is withholding the camera footage responsive to request 5 pursuant to both clauses of Exemption (c) ofthe Public Records Law, explaining that the footage may reveal the identities of individuals who have used the Department's drop-off drug box to dispose of their medications, and the release ofthe footage would be an invasion of privacy. Exemption (c) applies to: 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.l32, 135 (1987). The second clause of Exemption (c) 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." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979).

Mr. Brian M. Maser, Esq. SPR16/750 Page 3 September 30, 2016 The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. In a telephone conversation with an attorney on my staff you indicated that you would provide Mr. Relihan with a revised response to his request for the camera footage and the Town's Exemption (c) claim to withhold it. Conclusion I will consider this administrative appeal closed with the proviso that the Town provide a revised written response to Mr. Relihan's request, 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 cop,y of this response to this office at pre@sec.state.ma.us. Mr. Relihan may appeal the Town's revi d response within ninety (90) days. See 950 C.M.R. 32.08(2). cc: Mr. Tom Relihan