Diego Ibarguen, Esq. v. Brockton, City of - Police Department (SPR 20171339)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 2, 2017 SPR17/1339 Sergeant Brenda I. Perez Records Access Officer City of Brockton-Police Department 7 Commercial Street Brockton, MA 02302 Dear Sergeant Perez: I have received the petition of Diego lbarguen, Esq. appealing the response of City of Brockton Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on August 21, 2017, Attorney lbarguen requested "[a]ll police reports for incidents listed in [an] attached spreadsheet, which includes date and call/report number." On August 29, 2017, the Department provided a response in which it denied access to the responsive records claiming they were exempt under the Alcoholism Treatment Rehabilitation Law and Drug Rehabilitation Law as they operate through Exemption (a) of the Public Records Law. The Department also claimed Exemption (c). G. L. c. 4, § 7(26)(a); G. L. c. 11 lB, § 11; G. L. c. 11 lE, § 18; G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Attorney lbarguen petitioned this office and this appeal, SPRl 7/1339, 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, § 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, § 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, § 1O (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. 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

Sergeant Brenda Perez SPRl 7/1339 Page 2 October 2, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 August 29th response In its August 29th response, the Department indicated its intent to withhold the requested records due to the applicability of Exemption (a) and (c). The Department cited to G. L. c. 11 lB, § 11 and G. L. c. 11 lE, § 18, as applicable to withhold the police reports. Exemption (a) In the Department's response it indicated that it was withholding the police reports pursuant to the Alcoholism Treatment Rehabilitation and Drug Rehabilitation statutes, G. L. c. 11 lB, § 11 and G. L. c. 11 lE, § 18 respectively, as they operate through Exemption (a) of the Public Records Law. 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 records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statutes cited by the Department to withhold the records deals with the rights of patients and the dissemination of patient records. The Alcohol Treatment Rehabilitation Law reads in pertinent part:

Sergeant Brenda Perez SPRl 7/1339 Page 3 October 2, 2017 The administrator of each facility shall keep a record of the treatment afforded each patient, which shall be confidential and shall be made available only upon proper judicial order, whether in connection with pending judicial proceedings or otherwise ... G. L. C. 111B, § 11. The Drug Rehabilitation Law also reads in pertinent part: (a) The administrator of each facility shall keep a record of treatment afforded each patient, which shall be confidential and shall only be made available upon judicial order, whether in connection with pending judicial proceedings or otherwise, where disclosure is authorized by section 408 of the Drug Abuse Office and Treatment Act of 1972 and 21 U.S.C. 1175 or, where disclosure is authorized with the informed consent of the patient. Such consent shall be in writing, shall be to the benefit of the patient, and shall be signed by the patient. Such consent shall state the name of the person or organization to whom the disclosure is to be made, the specific type of information to be disclosed, and the purpose or need for such disclosure ... G. L. c. 11 lE, § 18. Based on the Department's response, it is unclear how the police reports constitute treatment records as contemplated by the above statutes and therefore exempt from public disclosure. Accordingly, I find that the Department has not met its burden of specificity in explaining how the statutes apply to the responsive records and permit the Department to withhold the records in their entirety. Therefore, the Department must explain how the police reports constitute treatment records and how the statutes apply to withhold the records in their entirety. Exemption (c) The Department also indicated its intent to withhold the records under the first and second clauses of Exemption (c) of the Public Records Law. Exemption (c) applies to: 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).

Sergeant Brenda Perez SPRl 7/1339 Page 4 October 2, 2017 First clause 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). 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). Second 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. The second clause of Exemption ( c) 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 norm:al 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 Department under its Exemption (c) claim indicated that "[t]he records requested contain medical files or information which must be withheld from records pursuant to this exemption." It explained that "[hJ ere, all reports contain personal information of admission, nature of medical condition, nature of call and/or treatment and medical diagnosis." The Department also indicated that disclosure "would constitute an unwarranted invasion of personal

Sergeant Brenda Perez SPR17/1339 Page 5 October 2, 2017 privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. Therefore, because this is a secured medical facility the listed exemptions apply." In light of the Department's August 29th response, I find the Department met its burden to withhold portions of the responsive record that contain medical information under Exemption ( c ). However, it is unclear how responsive records may be withheld in their entirety. The Department must determine whether any information within the record is not an "intimate detail of a highly personal nature" by considering the factors under the PETA decision and explain whether any non-exempt, segregable portion of the responsive record can be provided. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provide 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. Attorney Ibargueri may appeal the substantive nature of the response within ninety calendar days. See 950 C.M.R. 32.08(1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Diego Ibarguen, Esq.