Austin J. Freeley v. Holden, Town of - Police Department (SPR 20180137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12,2018 SPR181137 Chief David A. Armstrong Town of Holden - Police Department 1370 Main Street Holden, MA 01520 Dear Chief Armstrong: I have received the petition of Austin Freeley, Esq. on behalf of his client, appealing the response of the Town of Holden Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 10,2018, Attorney Freeley requested the following records: (1) All documents, including but not limited to all police reports, log entries, " correspondence, and/or notes concerning [an identified individual] . . . occurring on November 20,2017, . . . in Holden, MA. (2) All photographs talten by police officers in connection with the above referenced Incident." The Department provided a response on January 28,2018, in which it provided a record, indicated it did not possess certain records, and denied access to others pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (f). Unsatisfied with the Department's response, Attorney Freeley petitioned this office and this appeal, SPR181137, was opened as a result. Purpose of request; 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 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 Lexin@on, 371 Mass. 59,64 (1976). Accordingly, Attorney Freeley's purpose in making the request has no bearing on the public status of any existing responsive records. - 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

Chief David A. Armstrong Page 2 February 12,2018 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, 5 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentsuy 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, 5 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, 5 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, 5 lO(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 January 18"' response In its January 18,2018 response, the Department indicated that it did not possess responsive records regarding correspondence and photographs. It enclosed a log entry and indicated that it withheld reports and notes pursuant to Exemptions (a), (c), and (Q of the Public Records Law. Exemption (a) The Department indicated that it withheld responsive records pursuant to 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 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. Aopeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes

Chief David A. Armstrong Page 3 February 12,2018 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. Under its Exemption (a) claim, the Department indicated that "Exemption A provides a basis for withholding from disclosure information which is '. . . specifically or by necessary implication exempted from disclosure by statute.' (ex. CORI (Criminal Offender Record Information), Domestic Violence Confidentiality, HIPAA, Firearms Bureau Records, juvenile records, sexual assault reports)." Exemption (c) The Department indicated that it withheld responsive records pursuant to 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 First clause of Exemption (c) medical - Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). The first clause of Exemption (c) creates a categorical exemption for personnel and medical Id. information that relates to an identifiable individual and is of a "personal nature." 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 is sufficiently personal Id. to warrant exemption. 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).

Chief David A. Armstrong Page 4 February 12,2018 Second clause of Exemption (c) 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); Attomev Gen. v. Assistant Comm'r of Real Property m, 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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information whch the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. 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 m, privacy, the private interest in preventing disclosure must yield. 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Under its Exemption (c) claim, the Department indicated that ". . . please note that we also redact personal information about you (i.e. full or partial social security, date of birth etc.), for your own protection." The Department also asserted that "Exemption C allows the withholding of 'intimate details of a highly personal nature' including but not limited to '. . . marital status, paternity, substance abuse, government assistance, family disputes, and reputation."' Exemption Ct) The Department indicated that it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (if)p ermits 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 prejudicethe possibility of effective law enforcement that such

Chief David A. Armstrong Page 5 February 12,2018 disclosure would not be in the public interest 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 Lexinpton, 371 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 Cornm'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. Under its Exemption (f) claim, the Department indicated that ". . . Exemption F allows us to withhold '. . . any information relating to an ongoing investigation if disclosure could alert suspects to the activities of investigative officials. Also, any confidential investigative techniques may be withheld indefinitely since their disclosure would prejudice future law enforcement efforts."' The Department further indicated that "Exemption F may be applied to '. . . assure confidentiality to private citizens so they will speak openly."' Burden of speciJicity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper m, Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); 419 Mass. at 51 1. The Department has not provided enough specificity in its response to withhold reports and notes under Exemption (a) of the Public Records Law. Although the Department included in its response examples of statutes that may allow records custodians to withhold records from disclosure, it is unclear which particular statute applies to these specific records thereby permitting the Department to withhold responsive records. Likewise, I find the Department has not met its burden of providing specific detail in its response to withhold responsive records under Exemption (c). Generally, Exemption (c) would allow a records custodian to withhold records that contain medical information. However, it is unclear how the reports and notes contain medical information. It is additionally uncertain how the records cannot be redacted to prevent the disclosure of any personally identifying PETA information or medical information. Also, considering the analysis, the Department has

Chief David A. Armstrong Page 6 February 12,2018 not demonstrated that the records contain intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. In addition, the Department must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the m, requested information substantially outweighs the seriousness of any invasion of privacy. 477 Mass. at 291-92. Further, while the Department claims Exemption (f) allows it to withhold information relating to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Additionally, the Department did not provide supporting information concerning how disclosure could alert suspects to the activities of investigative officials nor any confidential investigative techniques unique to this investigation such that disclosing any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" See as required by Exemption (f). 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 lO(a). Consequently, I find that the Department has not met its burden to establish how the responsive records may be withheld in their entirety under Exemptions (a), (c), and (f). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Attorney Freeley responsive records, provfded 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Austin Freeley, Esq