Darrell Proffitt v. Chelmsford, Town of - Police Department (SPR 20180011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 18, 2018 SPRlS/011 Kathleen Bennett Town of Chelmsford Police Department Records Division 2 Olde North Road Chelmsford, MA O1 824 Dear Ms. Bennett: I have received the petition of Darrell Proffitt appealing the response of the Town of Chelmsford 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, Mr. Proffitt requested a copy of any police report regarding the death of an identified person. The Department has denied the request pursuant to Exemptions (c) and (f) of the Public Records Law. Previous appeal The record was the subject of a previous appeal. See SPRl 7 /1561 Determination of the Supervisor of Records (Supervisor) (November 14, 2017). I closed SPRl 7/1561 with the proviso that the Department would provide Mr. Proffitt with a supplemental response concerning the request and its Exemption (f) claim to withhold the record. The Department provided a November 21st supplemental response which provided in more detail the status of the open investigation, and explained an Exemption ( c) claim. Mr. Proffitt appealed the November 21st response, asking that this office verify that the Department's investigation is still open, and why he cannot have access to the Department's report considering that he is related to one of the subjects of the record. As a result, the current appeal was opened. Reason for the request Mr. Proffitt stated in his previous petition on October 30, 2017 that he just wants to see the details, and that one of the subjects of the record was his step-mother. It is his belief that his status should give him special access to the record. However, the Public Records Law does not distinguish between individuals seeking public records. Mr. Proffitt should be advised that his 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

Kathleen Bennett SPR18/01 l Page2 January 18, 2018 status as a possible family member offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § lO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Mr. Proffitt's interest in the murder investigation shall have no bearing on the public nature of the record. 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, § 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. The Department's November 21, 2017 response In its November 21st email response, the Department claimed it is withholding information under Exemption (f). Additionally, the Department indicated that the requested record contains private information concerning medical data as well as family dynamics and information relating to juveniles which was withheld pursuant to Exemption ( c ). The Department's response notes that it would not be possible to segregate and redact sensitive information. 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, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause 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). The

Kathleen Bennett SPR18/01 l Page 3 January 18, 2018 first clause, relevant to this determination, 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 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). While it is generally held that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. The Department explained that the report contains medical diagnostic information regarding the victim, as well as information noted by the detectives and the medical examiner concerning the medical data about the body, the condition and position of the body, and information concerning a possible cause and manner of death. The Department believes that such information reveals detailed, intimate information about the subject. Therefore, the Department may withhold all medical information contained in the report pursuant to the first clause of Exemption (c). Second clause The Department also indicated that much of the information contained in the report is of a personal nature concerning the family dynamics, family disputes, as well as information concerning events perpetrated by family and household members that relate to juvenile safety and welfare. The Department contends that disclosure of this information would constitute an unwarranted invasion of the privacy of the subjects of the record. 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 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.

Kathleen Bennett SPR18/0ll Page4 January 18, 2018 App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). The Department explained that the information contained in the report relates to substance abuse, neglect and abuse of juveniles, as well as family dynamics which are the types of intimate details that Exemption ( c) seeks to protect from public disclosure. This office was informed that the subjects of the report, immediate and extended family members other than the decedent are alive, and release to the public of issues and events from childhood and leading up to the decedent's death may expose them to further personal embarrassment and stress. While some information was provided to a magazine and newspaper in 1999 or 2000 by a source unknown to the Department, the report contains much more explicit details concerning the family dynamic, juvenile safety and welfare issues and details concerning the discovery of the decedent's body. The Department posits that public disclosure of this information may expose the subjects and family members of the subjects who wish to retain their privacy and reputation in the community. 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, 4 77 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. Based on the information provided by the Department in its supplemental response and through a conversation with a staff member in the Public Records Division, I find that the Department has met its burden demonstrating that the public's interest in this information does not substantially outweigh the seriousness of the invasion of privacy of the subjects and others, both family and close associates, whose intimate details of their lives may be exposed by public disclosure. The Department may redact this information from the report under Exemption (c ). Exemption (f) The Department is also withholding the detective's report regarding the investigation of the identified person's death due to the active and ongoing nature of the murder investigation pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7 (26)(f).

Kathleen Bennett SPR18/011 Page 5 January 18, 2018 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 3 71 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. In a discussion with Lieutenant Colin Spence of the Department, an attorney in the Public Records Division learned that the Department has not closed the investigation into this homicide and is re-reviewing evidence and information collected. The Department explained that the majority of the detectives' report contains information on how the body was discovered, the appearance of the body and information of possible cause of death, as well as the medical examiner and detectives' observations and interim conclusions. The report also contains statements and information provided to the Department by persons who voluntarily provided information to the Department with an assurance of confidentiality. Lieutenant Spence believes that even with a redaction of names, these individuals may be indirectly identified, as Mr. Proffitt may be familiar with others who may be subjects in the report. It is also the Department's contention that release of the report would be prejudicial to their continuing investigation because no person has been charged with the death. This office was also informed that the Department has not released this report or any reports to the public under the Public Records Law, as Mr. Proffitt has claimed. The Department believes that it may be possible that information could have been provided by a police department in another state, or from another source other than the Department, including any persons who may have obtained information outside of the Public Records Law and provided such information to the news media some years ago.

Kathleen Bennett SPR18/011 Page 6 January 18, 2018 Duty to segregate records As this office advised the Department in its previous determination and in a discussion with the Department, records custodians have a duty to segregate exempt material or content from public records, and provide the non-exempt portion of a public record. G. L. c. 66, § 1 O(a). Based on this office's discussion with Lt. Spence and a review of the Department's responses, the Department believes that even if the Department redacts information that is exempt under Exemption (c) and (f) and provides the balance of the report, the report will be rendered useless to Mr. Proffitt or anyone else in the public realm. Nevertheless, I find that the Department must produce any non-exempt portions of the Detective's report, and provide the redacted report to Mr. Proffitt. Order Accordingly, I find that the Department is ordered to review the record, redact where necessary under Exemptions ( c) and (f), and provide Mr. Proffitt with the record in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any response that accompanies the record 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: Darrell Proffitt Lt. Colin Spence