Michael Dreslinski v. Auburn, Town of - Police Department (SPR 20171245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18,2017 SPR17/1245 Stacy Fitzgerald Records Access Officer Town of Auburn-Police Department 416 Oxford Street, North Auburn, MA 01501 Dear Ms. Fitzgerald: I have received the petition of Michael Dreslinski appealing the response of Auburn Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 13, 2017, Mr. Dreslinski requested the following three categories of records regarding an incident involving an Auburn Police cruiser: 1. All 2017 written communications to and from manufacturer and/or supplier of Auburn Police Department's Ford Interceptor and Explorer SUV vehicles used as cruisers regarding toxic fumes entering the vehicles during use; 2. Public records request regarding the August 2017 crash of an Auburn Police cruiser likely due to carbon monoxide exposure; and 3. Responses to public record requests regarding the August 2017 Auburn Police cruiser crash, EXCLUDING any records provided as responsive to the request. The Department provided a response dated September 1, 2017 providing certain portions of the responsive records and cited Exemptions (a) and (c) to withhold/redact other portions of the responsive records. G. L. c. 4, § 7(26)(a); (c). Unsatisfied with the Department's response, Mr. Dreslinski petitioned this Office and this appeal, SPR17/1245, 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, § 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

Stacy Fitzgerald SPR1711245 Page2 September 18, 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, § 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 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. The Department's September 1st response In the Department's September 1st response, the Department indicated that" ... [w]ith respect to your request, the Department intends to redact the following requested records - Accident report and Accident reconstruction ... due to the applicability of the following exemptions: ... Exemption (a): [t]his exemption applies to records that are 'specifically or by necessary implication exempt from disclosure by statute.' In particular, G. L. c. 66, § 1O B advises that the horne address, telephone number and personal email address of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel shall not be public records. The records contain law enforcement officer name, DOB, and driver's license number. As a result, such information must be withheld/redacted under the law." Exemption (a) The Department cited G. L. c. 66, § lOB to redact the name, date of birth, and driver's license number of the officer involved in the incident. 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 G. L. c. 4, § 7(26)(a). 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

Stacy Fitzgerald SPR1711245 Page 3 September 18, 2017 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); Ottawav Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't of Envtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute cited by the Department to justify the redaction of records applies. to public safety and criminal justice system personnel and unelected general court personnel. In your September 1st response you cite to a statute, G. L. c. 66, § 1O B. This statute states in pertinent part: ... The home address, personal email address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6 G. L. c. 66, § lOB. Based on the above statute it is unclear how the statute applies to this case. The Department redacted the name, date of birth, and driver's license number of a law enforcement officer. None of this information is enumerated in the above statute. Consequently, I find that the Department has not met its burden to redact the information under Exemption (a). See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Exemption (c) The Department indicated that it was withholding some records under Exemption (c) of the Public Records Law. 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

Stacy Fitzgerald SPR1711245 Page4 September 18, 2017 analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this appeal, 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 Corum. 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. Id. 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). The Department in its response indicated that, "[t]he records requested contain medical files or information which must be withheld/redacted from the records pursuant to this Exemption. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. As a result, such information must be withheld/redacted under the law." I find that the Department properly withheld records that contain medical files or information under Exemption (c). With respect to Request Number 2, "regarding the August 2017 crash of an Auburn Police cruiser," the Department indicated that, it was withholding responsive records because "this is still an active ongoing investigation that may take months to complete." The Department failed to claim an Exemption in the Public Records Law to withhold the records regarding the incident. In order to withhold records under the Public Records Law, the Department must cite an exemption in the Public Records Law and specifically explain how the exemption applies to withhold each individual record. See Flatley, 419 Mass. at 511. No duty to create records With respect to Request Number 3, requesting "[r]esponses to public records request regarding the August 2017 Auburn Police cruiser crash ... ,"the Department indicated that "[w]e have not received any other requests." Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Department explains it has "not received any other requests" and does not possess any documents responsive to Request Number 3, I find that Mr. Dreslinski's appeal related to the third request is resolved. I understand a Public Records Division staff attorney contacted your office about this appeal.

Stacy Fitzgerald SPR17/1245 Page 5 September 18,2017 Conclusion Accordingly, whereas the Department has indicated that it will provide Mr. Dreslinski with a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provides said response 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. Mr. Dreslinski may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, -~ Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski