Todd Wallack v. Office of the District Attorney - Worcester District (SPR 20170752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

June 15, 2017 SPR17/752

Lindsay Corcoran

Records Access Officer

Office of the District Attorney — Worcester District Worcester Trial Court

225 Main St. G301

Worcester, MA 01608

Dear Ms. Corcoran:

I have received the petition of Todd Wallack of The Boston Globe appealing the response of Office of the District Attorney — Worcester District (DAO) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested “any and all records” pertaining to an identified person. Mr. Wallack provided categories of records that should be included with the requested records. In a response dated May 30, 2017 the DAO provided certain responsive records and withheld or redacted others 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, § 10A(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, § 10(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 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

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

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provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information.

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).

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 Co., 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).

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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See

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People for the Ethical Treatment of Animals v. Dep’t of Agric. Res., 2017 Mass. LEXIS 390, at *19-20 (June 14, 2017).

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 *20 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. People for the Ethical Treatment of Animals, 2017 Mass. LEXIS 390, at *19. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at *20.

In its May 30" response the DAO indicates “[t]he investigative reports have been redacted to exclude medical records and materials that would ‘constitute an unwarranted invasion of personal privacy’ of the persons involved. G.L. c. 4, § 7(26)(c).” You state “[t]he exemption protects ‘intimate details of a highly personal nature,’ examples of which include ‘marital status, paternity, substance abuse, government assistance, family disputes and reputation.’”

The DAO also explains that “‘[t]he documents provided to legal counsel representing Mr. Hernandez’s family are also being withheld for privacy reasons as it would ‘constitute an unwarranted invasion of personal privacy’ of the persons involved. G. L. c. 4, § 7(26)(c).” You assert “[t]hese files were turned over to Mr. Hernandez’s family attorneys in compliance with a court order.”

The DAO further indicates “[v]ideo footage is also being withheld for privacy reasons as it would ‘constitute an unwarranted invasion of personal privacy’ of the persons involved. G. L. c.4, § 7 (26)(c).” Finally, you indicate the DAO has no records responsive to Mr. Wallack’s request for text messages.

It is generally held that an individual’s privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. However, it is unclear which of the “persons involved” the DAO is claiming has a privacy interest in the responsive records. As such, the DAO has not established how disclosure of records may constitute an unwarranted invasion of personal privacy of an individual with a privacy interest.

Therefore, the DAO has not met its burden to establish how the responsive records may be redacted or withheld in their entirety under the second clause of Exemption (c). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory

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disclosure. G. L. c. 66, § 10(a). I understand a Public Records Division staff attorney contacted you about this matter. .

Conclusion

Accordingly, the DAO is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Sincerely,

Rebecca S. a. Mang

Supervisor of Records

cc: Todd Wallack