Nalmo Cruz, Jr. v. Northampton, City of - Police Department (SPR 20171293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 26, 2017 SPR17/1293 Jane Lawnicki Records Supervisor 29 Center Street Northampton, MA 01060-3090 Dear Ms. Lawnicki: I have received the petition ofNalmo Cruz, Jr. appealing the response of the Northampton Police Department (Department) to his request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Cruz requested copies of police reports pertaining to an identified individual within an indicated time frame. 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). 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, § 1 O(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose ofrequest; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons 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

Jane Lawnicki SPR17/1293 Page 2 September 26, 2017 in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Cruz's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1 )(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Cruz may wish to consider another means of seeking to obtain any existing responsive records. The Department's September 6th response In its September 6th response, the Department indicates its denial of Mr. Cruz's request and its intent to withhold the responsive records pursuant to Exemption (a) and Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26)(a), (c). 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 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. 151, 54 (1979); 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

Jane Lawnicki SPR17/1293 Page 3 September 26, 2017 records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department's September 6th response states that "[t]he information is being withheld pursuant to" Exemption (a), and explains "[t]he names of victims of sexual assault shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed." However, it is unclear what statute the Department is claiming deems the responsive records exempt from disclosure. I find that the Department has not met its burden of specificity in explaining how a statute operating through Exemption (a) applies to the responsive records and permits withholding of those records in their entirety. 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). rt Clause The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." ld. 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., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-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 specifically named individual. 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).

Jane Lawnicki SPR17/1293 Page 4 September 26, 2017 2nd Clause 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 requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). 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 ofthis 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). The Department's September 6th response states that "[t]he information is being withheld pursuant to" Exemption (c), and explains "[d ]isclosl1re of materials or data relating to a specifically named individual may constitute an unwarranted invasion of personal privacy." However, it is unclear which clause the Department is claiming and how withholding of the records is permitted. I find that the Department has not met its burden of specificity in explaining how either clause of Exemption (c) applies to the responsive records and permits withholding of those records in their entirety. Burden of specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's September 6th 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) without any further explanation as to the exemptions' 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.

Jane Lawnicki SPR17/1293 Page 5 September 26, 2017 Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the Department intends to provide Mr. Cruz with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the Department provides a 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. Cruz may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Nalmo Cruz, Jr.