Shannon Gallagher v. West Bridgewater, Town of - Police Department (SPR 20170813)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29,2017 SPRl71813 Chief Victor R. Flaherty, Jr. Town of West Bridgewater Police Department 99 West Center Street, #2 West Bridgewater, MA 02379 Dear Chief Flaherty: I have received the petition of Shannon Gallagher of The Enterprise of Brockton appealing the response of the Town of West Bridgewater Police Department (Department) to a request for public records. G. L. c. 66 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gallagher requested a copy of all police documents, reports and records pertaining to the police incident which led to summons request 17-18 7-AR. Department response The Department provided Ms. Gallagher with the dispatch log, the 91 1 call log and a redacted motor vehicle crash report. The Department's June 6,2017 email response states that the Department redacted the motor vehicle crash report pursuant to Exemption (a) and Exemption (c), and the Department withheld the police report/summons and related documentation pursuant to the Criminal Offender Record Information Act, as it operates through Exemption (a). You state in your June 6thr esponse, "the arrest was not an arrest covered under Chapter 41 section 98F but was a summons. The individual was not arrested.. .the victims' information is additionally covered and exempt under Exemption (a)." Ms. Gallagher appealed the Department's June 6thr esponse and redaction of the motor vehicle crash report and this appeal was opened. 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, 5 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Chief Victor R. Flaherty, Jr. Page 2 June 29,2017 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlep, 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. 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 at htt~://www.sec.state.ma.us/pre/prepdPfu/b~li c Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Chief Victor R. Flaherty, Jr. Page 3 June 29,20 17 The statute that the Department cites to withhold the police report/summons and documentation is the Criminal Offender Records Information Act (CORI). G. L. c. 6, 5 167 CORI is defined as: [Alny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Your June 6the mail response merely states, "the police report/summons and other documentation is not attached and is covered under the CORI Act." Your response fails to specifically explain how the CORI Act applies to withhold these records in their entirety. In addition, the Department has not identified what other documents it has in its custody that are being withheld under the CORI Act and why these records cannot be redacted. Therefore, I find that the Department has not met its burden of properly responding and supporting its claim that the CORI Act allows the Department to withhold the police report/summons and other documentation. 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 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 information that relates to an Id. identifiable individual and is of a "personal nature." at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 43 1 Mass. 792,798 (2000). The courts have discussed specific categories of records that may be redacted under the

Chief Victor R. Flaherty, Jr. Page 4 June 29,2017 first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01 184-A (June 14,2013). The first clause, also allows a records custodian to withhold medical information that is of a personal nature and relates to a speciJically 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). 2nd clause of Exemption (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 (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (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 Id. disputes and reputation. at 292 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. PETA, 477 Mass. at 291. The public has a recognized interest in lcnowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. The Department's June 6thr esponse states that the motor vehicle accident report was redacted to protect the injured parties under Exemption (c); however, it is unclear whether the Department is claiming that the first clause or the second clause of Exemption (c) was applied to

Chief Victor R. Flaherty, Jr. Page 5 June 29,2017 withhold content from the accident report. I find that the Department has not met its burden of specificity in explaining how either clause of Exemption (c) applies to withhold the information and why. Burden of specificity The Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis adde4; see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's June 6'" response did not contain the level of specificity required in withholding content from a record or in denying access to records. Instead, the Department merely cites Exemptions (a) and (c), as well as the CON Act without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Order Accordingly, the Department is hereby ordered to provide Ms. Gallagher with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its 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. Ms. Gallagher may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, v Rebecca S. Murray Supervisor of Records cc: Shannon Gallagher