Todd Wallack v. Office of the District Attorney - Worcester District (SPR 20171123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2017 SPR17/1123 Lindsay Corcoran Public Records Officer Office of the District Attorney - Worcester County· 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 the Office of the District Attorney-Worcester District (DAO) to a request for public records. G. L. c. 66, § lOA; 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 appeals This request was the subject of previous appeals. See SPRl 7/752 Determination of the Supervisor of Records (June 15, 2017); SPRl 7/925 Determination of the Supervisor of Records (July 21, 2017). I closed SPRl 7/925 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 August 7, 2017 in which it continues to withhold certain responsive records under Exemption ( c) of the Public Records Law. G. L. c. 4, § 7 (26)(c). Mr. Wallack appealed and SPRl 7/1123 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 records. G. L. c. 66, § lOA(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). 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 SPR17/1123 Page 2 September 1, 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, § lO(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 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. 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, § 7(26)(c). The DAO continues to ih cite Exemption ( c) in its August 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 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

Lindsay Corcoran SPRl 7/1123 Page 3 September 1, 201 7 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 disputes and reputation. Id. 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 knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The DAO asserts "this office provided redacted copies of investigative reports and indicated there are no text messages. Regarding material provided to legal counsel and videos, this office invoked the privacy exemption. As is done in all cases of unattended deaths, this office provided legal counsel with notes of the deceased written to specified persons." The DAO continues by stating "[a]fter careful review, this office reiterates its long-held position that final thoughts of the deceased, expressed in notes to loved ones, are inherently private and exempt from public disclosure under G.L. c. 4, § 7 (26) (c). Similarly, video recordings including naked images of the deceased are of such a personal nature that the same exemption must apply." The DAO further asserts that "[i]t has been the unbroken practice of this office to protect the privacy of persons involved in unattended deaths. Mr. Hernandez and his family are entitled to the same respect and dignity that we accord others in such painful circumstances -- regardless of his notoriety or public curiosity." The DAO concludes by stating "[t]herefore, apart from the redacted investigative reports that have already been disseminated, this office will not be providing any further information about this case." Custodial index of responsive records The Supervisor may require a custodian to compile an index of the requested records where numerous records or a lengthy record have been requested. Said index shall meet the following requirements: 1. the index shall be contained in one document, complete in itself; 2. the index shall adequately describe each withheld record or redaction from a released record; 3. the index must state the exemption or exemptions claimed for each withheld record or each redaction of a record; and

Lindsay Corcoran SPRl 7/1123 Page 4 September 1, 2017 4. the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. 950 C.M.R. 32.08(5)(a)-(c). Although the DAO provides a general description of Exemption (c)'s applicability to the responsive records, it is unclear which specific documents were provided to legal counsel or what information was redacted in the investigative reports, nor is it clear how many videos or recordings exist and what each video depicts. I find a custodial index would act to assist in determining the extent to which an exemption applies to withhold the responsive records. 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 ofrecords at the time of the request. See G. L. c. 66, § IO(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, which includes a custodial index as described above, 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