Philip Sharp v. Somerville, City of - City Solicitor (SPR 20170163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2017 SPR17/163 Jason D. Grossfield, Esq. Assistant City Solicitor City of Somerville-Law Department 93 Highland A venue Somerville, MA 02143 Dear Attorney Grossfield: I have received the petition ofPhillip Sharp appealing the December 15, 2016 response of the City of Somerville (City) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sharp requested a copy of the death or incident report concerning a specifically-identified victim of a homicide. The City provided Mr. Sharp with a copy of a journal entry, which was redacted pursuant to Exemption (f). The City is withholding the initial report pursuant to Exemption (a), (c) and (f) of the Public Records Law. Prior appeals The requested records were the subject of two prior appeals. See SPR16/1 042; SPR17/085 Supervisor ofRecords Determinations (December 7, 2016 and January 27, 2017). In the Supervisor's determinations, the City was asked to provide a more detailed response concerning its denial of Mr. Sharp's request for the investigation record. On February 2, 2017, the City provided this office with a second copy of the December 15th response. While this office was provided with a copy of the response on December 15th, Mr. Sharp did not receive a copy of the response until February 2nd due to an error in typing Mr. Sharp's email address. Mr. Sharp now appeals the City's December 15, 2016 response, stating, "I am requesting the investigation notes from detectives after the discovery/recovery of the body." 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) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). Public records" is broadly defined to include all documentary materials or data, 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

Jason D. Grossfield, Esq. SPR17/163 Page 2 February 16,2017 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) (2016 ed.); 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. Exemption (f) In its December 15, 2016 response and during a telephone discussion with an attorney on my staff in November 2016 after Mr. Sharp made the initial public records request, you explained that the City would provide Mr. Sharp with a log or journal entry for the date when the body was reported to the City's Police Department. However, the City explained that the identity of the witness who reported finding the body would be withheld or redacted from the journal entry pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, 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. An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 290 n.18 (1979). As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Releasing the identity of a witness, victim or complainant could prevent individuals from coming forward with information or less likely to cooperate with an investigation in the future, if they know that their identity will be disclosed to the public. In addition, releasing the identities of any witnesses or complainants could also lead to witness intimidation and retaliatory violence. Therefore, I find that the City has properly withheld the identity of the individual who reported the crime pursuant to Exemption (f). Incident report and/or investigative notes Mr. Sharp informed this office on February 2nd that he has no interest in any private

Jason D. Grossfield, Esq. SPR17/163 Page 3 February 16, 2017 information or anything that would affect others. He is specifically interested in receiving the investigative notes from the detectives after the discovery of the body of the person identified in his original November 2016 request. The City is withholding the incident report including the notes made by the City's police officers concerning the still-open investigation of an unsolved homicide. The public disclosure of information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289 (1979). Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. ChiefofPolice ofLexington, 371 Mass 59,62 (1976). In a discussion with my staff attorney and in your December response, you explained that the report contains the mental impressions and observations as well as notes of the investigating officers. The City has stated that whereas the homicide is umesolved, release of the information recorded by the officers and detectives of the City's police department could jeopardize the open investigation and jeopardize prosecution by the District Attorney. However, the underlying crime was committed approximately 44 years ago; therefore, I find that the City has not met the burden of proving that Exemption (f) allows the City's police department to withhold the incident report in its entirety. In speaking with an attorney on my staff on February 15th, you stated that the City would provide another response to support its Exemption (f) claim. Exemption (c) While Mr. Sharp has stated that he is only requesting the City's Police Department Detectives' investigative notes and does not seek any private information, the content of the investigative notes also contains private medical information which may be withheld under Exemption (c) ofthe Public Records Law. 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). Whereas, the City is withholding the records pursuant to the first clause of Exemption (c), discussion and analysis under the second clause of Exemption (c) is not necessary. The first

Jason D. Grossfield, Esq. SPR17/163 Page 4 February 16, 2017 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. The City has explained to this office and to Mr. Sharp in its response, that the investigative record contains information concerning the medical information of the decedent. Mr. Sharp requested the investigative notes of the police department detectives concerning the discovery and recovery of a specifically-identified individual in an open homicide investigation. The fact that the victim of the homicide is known to Mr. Sharp and that he has received criminal offender record information of the decedent through other public records requests to the Commonwealth as well as other states in the New England area, has no bearing on receipt of medical information of a decedent under the Public Records Law. 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. The City also informed this office that the investigation notes also contains impressions, opinions and other information of the medical examiner concerning the decedent's body. 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). An individual's privacy interest in medical information survives death. Chief Medical Examiner, 404 Mass. at 134. Therefore, the requested records may also be withheld pursuant to the first clause of Exemption (c) ofthe Public Records Law. Conclusion I find the City has properly withheld the witness and complainant identification under Exemption (f), and the medical information of the victim-decedent pursuant to Exemption (c) of the Public Records Law. However, the City has not met its obligation of supporting its Exemption (f) claim to withhold the incident report in its entirety. Accordingly, whereas the City has promised to provide a further response regarding the incident report, I will consider this appeal closed with the proviso that the City provides Mr. Sharp with the response in a manner consistent with this order, the Public Records Law and Regulations within ten (10) business days. 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. Mr. Sharp may appeal the substantive nature of the City's supplemental response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~- Rebecca S. Murray Supervisor of Records cc: Phillip Sharp (via email), Chief of Police Paul Trant