Ronald Alexander v. Wellesley, Town of - Police Department (SPR 20170522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2017 SPR17/522 Kelly Leahy Public Records Manager Town of Wellesley Police Department 485 Washington Street Wellesley, MA 02481 Dear Ms. Leahy: I have received the petition of Ronald Alexander appealing the response of the Town of Wellesley Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Alexander requested a copy of all records pertaining to a named individual in the possession of the Department. The Department provided records, but withheld one record pursuant to Exemptions (c) and (f) of the Public Records Law. The withheld record was the subject of a prior appeal and determination. See SPRl 7 /3 51 Determination of the Supervisor of Records (April 3, 2017). In my April 3rd determination I found that the Department did not meet its burden of supporting its Exemption ( c) and Exemption (f) claims to withhold Incident Report No. 17-101-0F and to redact certain of the information contained in Incident Report No. 17-109-0F. As a result of a prior appeal, the Department provided a supplemental response on April 18, 2017 regarding the withheld record. Mr. Alexander appealed. Status of the requester and reason for the request It is important for Mr. Alexander to understand that his status or interests in the underlying matter(s) which led to the public records request and to the content of the records does not afford him any greater right of access to the requested information under the Public Records Law. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Alexander's status will play no role in a determination as to whether the records should be disclosed to the public. 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

Kelly Leahy SPR17/522 Page 2 May 2, 2017 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, § IOA(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, § IO(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). Exemption (c) The Department has withheld Incident Report 17-101-0F in its entirety and redacted content from Incident Report 17-109-0F pursuant to Exemption (c) of the Public Records Law. 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. Chief Medical Examiner, 404 Mass. 132, 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).

Kelly Leahy SPR17/522 Page3 May 2, 2017 The second clause of Exemption ( c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. 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. Both Incident Report No. 17-101 and Incident Report No. 17-109 contain private medical information concerning mental health issues which is diagnostic in nature and concerns the subject of the record, thus, is protected under the first clause of Exemption (c). Medical information is absolutely exempt under the first clause of Exemption (c ) and cannot be disclosed to the public. The Department explained in its April 18th supplemental response that the medical information was redacted from Incident Report No. 17-109, along with redacting private and witness identification information, and provided that particular report to Mr. Alexander. However, the Department found it necessary to withhold Incident Report No. 17-101 in its entirety due to medical information and detailed statements obtained by the Department officer(s) in communications with witnesses seeking police assistance with a domestic matter under the first and second clause of Exemption (c) and Exemption (f). The Department's Incident Report No. 17-101 was withheld in its entirety not only due to detailed medical information, but also detailed statements of witnesses concerning named individuals' marital status, family fights and familial disputes as "intimate details of a highly personal nature" under the second clause of Exemption (c). Application of the privacy exemption requires a balancing between any claimed invasion of privacy interest of the record outweighs the public interest in disclosure. In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2008); Attorney Gen. v. Collector of Lynn, 377 Mass. at 156. In identifying the existence of privacy interests, the factors for consideration include whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. Id.; see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). The essence of the entire report pertains to an intimate and familial relationship involving disputes and domestic matters communicated to the Department by witnesses and the information contained in the report is the type of information that the privacy exemption was designed to protect from public disclosure under Exemption (c ). There is no paramount public interest in such an intimately private matter, therefore, the Department has properly withheld the report under Exemption ( c ). While the Department was able to redact certain of the medical and personal information from Incident Report No. 17-109 and provide Mr. Alexander with that report, Incident Report No. 17-101 cannot be redacted in such a manner to protect the medical, "intimate details" and witness identities either directly or indirectly, as the subject of the records would be able to identities those witnesses who came forward voluntarily.

Kelly Leahy SPRI 7/522 Page4 May 2, 2017 Exemption (I) The Department has also withheld from the witness statements and certain information regarding the Department's strategy in carrying out the investigation in the underlying matter contained in both reports under 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). Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. 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, 371 Mass. at 62; cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, 378 Mass. at 289. Instead, it invites case-by-case consideration of whether access would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. Statements within Department Officer Cunningham's Paragraphs #1, #3 and #5 in Report No. 17-109 were redacted from the report under Exemption (f). Your April 18th supplemental response states, "the redacted information reveals strategy and investigative techniques that if released to the public would prejudice further law enforcement efforts .... because individuals could use this information to avoid detection and/or arrest in the future." The Department informed this office that the release of this information would reveal Officer Cunningham's observations, hypotheses, interim conclusions and strategy in locating a subject. Moreover, the Department believes that public knowledge of this information would allow any person seeking to foil police efforts in investigating, observing, surveillance, location or even arrest in the future. Accordingly, Exemption (f) will allow the Department to redact this information from the report. An investigative agency is not required to demonstrate prejudice to withhold the

Kelly Leahy SPR17/522 Page 5 May 2, 2017 identities of voluntary witnesses, informants, victims or complainants. Reinstein, 378 Mass. at 290 n.18. 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. Bougas, 3 71 Mass. at 62. 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., 388 Mass. at 438. 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 may be familiar with the individual." Id. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. The Department has withheld the witness statements in their entirety under Exemption (f), because even if the Department redacted the name and any identifying details of any of the voluntary witnesses, these individuals could still be directly and indirectly identified or located. In this instance, the Department cannot protect the voluntary witnesses by redaction due to Mr. Alexander's knowledge of the subjects of the records and the underlying matter. Therefore, I find that the Department has properly withheld the witness statements in their entirety under Exemption (f). Accordingly, I find that the Department has now met its statutory and regulatory obligation of withholding Report No. 17-101 under Exemptions (c) and (f), and in withholding certain of the information in Report No. 17-109 under Exemptions (c) and (f) of the Public Records Law. This administrative appeal is closed. If Mr. Alexander 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. 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: Ronald Alexander Ivria Glass Fried, Esq.