Shawn Musgrave v. Boston, City of - Police Department (SPR 20160903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 27, 2016 SPR16/903 Lt. Michael P. McCarthy Office of Media Relations Boston Police Department One Schroeder Place Boston, MA 02120 Dear Lt. McCarthy: I have received the petition of Shawn Musgrave appealing the response of the City of Boston-Police Department (Department) to a request for public records. G. L. c. 66 § lO(b); . ~~~[!ls() 9?0 C.M.R. }2.Q~G). Sp~c.:i±1c.:etllY, Mr.Musgraverequested ''[m]aterialscompiledhy . the Boston Police Department Firearm Discharge Investigation Team (FDIT) as delivered to the Suffolk District Attorney's Office." The Department provided responsive records but redacted certain information under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § lO(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. 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lt. Michael P. McCarthy SPR16/903 Page2 October 27, 2016 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. Exemption (c) The Department provided responsive records and, on October 7, 2016, confirmed that certain information was redacted 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 i11y(:lsi()l1()fpers()n(ll_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, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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 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, 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

Lt. Michael P. McCarthy SPR16/903 Page3 October 27, 2016 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 of Lynn, 377 Mass. 151, 156 (1979). In the Department's October 7 response, you indicate "information or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of privacy may be withheld. The redaction made to the documents sent were made by both the DA and the BPD pursuant to the statute (G.L. c. 4, s. 7(26)(c)." The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. In particular, it is unclear how any of the withheld information constitutes an "intimate detail of a highly personal nature" as required by Exemption ( c) . As a result, the Department has not met its burden to redact information under Exemption ( c) . I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. You indicated the Department would provide a supplemental response addressing the issues addressed above. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Musgrave with a response to the request, provided 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. cc: Mr. Shawn Musgrave