Todd Wallack v. Office of the District Attorney - Worcester District (SPR 20170925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21,2017 SPRl71925 Lindsay Corcoran Records Access Officer Office of the District Attorney - Worcester District Worcester Trial Court 225 Main St. G301 Worcester, MA 0 1608 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 5 l0A; 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. Previous appeal This request was the subject of a previous appeal. SPR171752 Determination of the Supervisor of Records (June 15, 2017). I closed SPR171752 by ordering the DAO to provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO responded in a letter dated June 28,2017 in which it continues to withhold certain responsive records under Exemption (c) of the Public Records Law. G.L. c. 4, 5 7 (26)(c). Mr. Wallack appealed and SPR171925 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public reqords. G. L. c. 66, 5 1O A(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, 5 7(26). 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

Lindsay Corcoran Page 2 July 21,2017 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, fj 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 provided. G. L. c. 66, fj lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (c) The DAO initially provided certain responsive records and withheld or redacted others under Exemption (c) of the Public Records Law. G. L. c. 4, fj 7(26)(c). The DAO continues to cite Exemption (c) in its June 28"' response. 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 The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." @. 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

Lindsay Corcoran Page 3 July 21,2017 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 a. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 41 5,427 (19 88) (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 knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. The DAO claims "[tlhe release of these documents would be an unwarranted invasion of privacy to the deceased, his family - including a minor child - and those individuals to whom some of the documents are addressed." You further assert "[tlhe contents of these documents includes discussions of many of these intimate and highly personal details. Because the final thoughts to loved ones are inherently private, it has been the unbroken practice of this office to withhold these materials from public view." The DAO continues by stating "the public's curiosity in obtaining these documents does not outweigh that inherent privacy. The release of these documents would not reveal to the public how public servants are carrying out their duties; rather it would only serve to satiate the public's curiosity." Finally, the DAO indicates "[tlhe video recordings in this case include nude images of the deceased - a textbook example of an 'unwarranted invasion of personal privacy' of the persons involved." Applicability of Exemption (c) As described above, the factors to consider when assessing the weight of the privacy interest at stake are: (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 -PET A, 477 Mass. at 292. Based on the DAO's response, it is unclear how disclosure of the withheld records would result in personal embarrassment to an individual of normal sensibilities. Further, the DAO has not demonstrated how the withheld records are intimate details of a highly personal nature, nor Id. addressed whether this information is available from other sources. In light of the PETA

Lindsay Corcoran Page 4 July 21,2017 analysis, I find the DAO has not met its burden to establish that Exemption (c) applies to withhold responsive records. 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 disclosure. G. L. c. 66, 5 10(a). Additional responsive records Although the DAO indicates it has no records responsive to Mr. Wallack's request for text messages, it is unclear which responsive records the DAO is withholding. The DAO must clarify which responsive records it possesses. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 lO(a)(ii). I understand a Public Records Division staff attorney contacted your office 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. Murray Supervisor of Records cc: Todd Wallack