Linda Matchan v. Office of the District Attorney - Hampden District (SPR 20170768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 19, 2017 SPR17/768 Maida H. Wasserman, Esq. Assistant District Attorney Office of the District Attorney -Hampden District 50 State Street Springfield, MA 01102 Dear Attorney Wasserman: I have received the petition of Linda Matchan of The Boston Globe appealing the response of Office of the District Attorney-Hampden District (DAO) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Matchan requested a copy of a police report involving an identified individual. Previous appeals This request was the subject of a previous appeal. See SPR17/ 634 Determination of the Supervisor ofRecords (May 23, 2017). I closed SPR17/634 with the proviso that the DAO provide Ms. Matchan a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a response dated May 30, 2017 the DAO explains the basis for the redaction of certain information under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The DAO also cites the Criminal Offender Record Information (CORI) Act in support of its position. G. L. c. 6, § 167. 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 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

Maida H. Wasserman, Esq. SPR17/768 Page 2 June 19, 2017 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In her appeal petition Ms. Matchan indicates she objects to the redaction of the name of a certain home health agency. The DAO cites Exemptions (c) to support the redaction of this 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). 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). 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 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.

Maida H. Wasserman, Esq. SPR17/768 Page 3 June 19, 2017 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. With respect to Exemption (c), the DAO indicates "[b]y providing the name of the Agency to you, there is a high risk of identifying the defendant. The public interest in disclosure does not outweigh the privacy interest associated with disclosure of this information." The DAO further claims "[a] member of the public could use the agency name to ascertain the identity of the defendant based on this information. Therefore the privacy exemption does apply to this situation." You also assert "[i]f a member of the public is able to ascertain the defendant's identity from this information, it also implicates the CORI, for which there is an exemption, G.L. c. 6, § 167." However, it is unclear how disclosure of the agency name, or defendant's name, would result in personal embarrassment to an individual of normal sensibilities, nor is it clear how this information is an intimate detail of a highly personal nature. I d. at * 19-20. As such, the DAO has not established how disclosure of the agency name 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 agency name may be redacted under the second clause of Exemption (c). With respect to the DAO's CORI claim, it is unclear whether the information at issue is available in the court's records that are accessible to the public. See Globe Newspaper Co. v. DA for the Middle Dist., 439 Mass. 374, 385 (2003) (there is no violation ofthe CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public). I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, the DAO is ordered to provide Ms. Matchan 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.

Maida H. Wasserman, Esq. SPR17/768 Page 4 June 19,2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Linda Matchan