Mary Ann Bragg v. Orleans, Town of - Town Administrator (SPR 20170341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29, 2017 SPR17/341 John F. Kelly Town Administrator Town of Orleans 19 School Road Orleans, MA 02653 Dear Mr. Kelly: I have received the petition of Mary Ann Bragg of The Cape Cod Times appealing the response of the Town of Orleans (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Ms. Bragg requested a copy ofrecords related to the death of a named individual on May 28, 2016 during the Town's lifeguard try-outs, specifically: 1. Internal review/reports of what happened on that day, including Fire Department, Police Department and beach operations; 2. Internal documents related to actions taken as a result of the incident related to censure and firing; 3. Beach Department reports about annual lifeguard try-outs for 2013 through 2015; 4. List of lifeguard staff for 2013 through 2016; 5. Resume of newly hired Head Lifeguard; and 6. The declaration page of the Town's insurance policy that would be invoked as a result of the incident. On February 1, 2017, the Town provided Ms. Bragg with a copy of all existing records responsive to her requests. The Town provided redacted versions of the Police and Fire Department reports pursuant to Exemption ( c) of the Public Records Law. Ms. Bragg appealed, requesting that the To.wn provide her with un-redacted versions of the reports. Appeal to the Supervisor You informed a Public Records Division attorney that the Town's Records Access Officer (RAO) did not receive a copy of Ms. Bragg's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that this same Public Records Division attorney provided you with a copy of the appeal file via email. 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

John F. Kelley SPRl 7/341 Page 2 March 29, 2017 Ms. Bragg is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1 )(h). 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, § lOA( d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. The Town's Responses The Town's initial February 1st response did not contain the specificity required in a denial of access to public records or in redacting certain of the content within a record. The Town merely cited Exemption (c) and the word "privacy" without any further explanation as to the exemption's applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In a March 22, 2017 telephone discussion, Police Chief Scott MacDonald informed a Public Records Division attorney that the Department withheld all the medical information of the named individual who is deceased. It is my understanding that the Department applied the incorrect clause of Exemption (c) of the Public Records Law. As a result of the telephone discussion and the email sent to the Town from the Public Records Division attorney, the Department's RAO Greta Montgomery provided Ms. Bragg with a second response on March 2211 concerning the redacted reports pursuant to the first clause of Exemption ( c ). Ms. d

John F. Kelley SPRl 7/341 Page 3 March 29, 2017 Montgomery states that "medical information" was redacted from the records of the involved party. 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). Only the first clause of Exemption ( c) is relevant to this determination, and it 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). This office has reviewed the reports and finds that the Department has indeed withheld the medical information of the named individual, who is also the decedent. After receiving the Department's second response, Ms. Bragg sent a March 25th email to the Public Records Division stating, "[W]e at Cape Cod Times are under the impression that a deceased person does not have the protection of personal privacy." While it is generally held that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. Therefore, I find that the Town and its Police Department has met its burden of supporting its Exemption ( c) claim to withhold the medical information from the records. Conclusion Accordingly, I find that the Town's Police Department has properly withheld the medical information of the named individual/decedent pursuant to the first clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). This administrative appeal is closed. If Ms. Bragg is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.

John F. Kelley SPRl 7/341 Page 4 March 29, 2017 L. c. 66, § 1 O(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Ann Bragg, Chief Scott MacDonald