Jim Haddadin v. Natick, Town of - Police Department (SPR 20180233)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division. Rebecca S. Murray Supervisor of Records March 8, 2018 SPR18/233 Lieutenant Leo Fitzpatrick Town of Natick-Police Department 20 East Central Street Natick, MA 01760 Dear Lieutenant Fitzpatrick: I have received the petition of Jim Haddadin of Metrowest Daily News appealing the response of the Town of Natick 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. Haddadin requested all records pertaining to Department Dispatch Log #15-17505. In a February 21,2018 response, the Department denied Mr. Haddadin's request in its entirety pursuant to the first clause of Exemption (c) due to medical information. Mr. Haddadin petitioned the Supervisor of Records, and this appeal was opened. 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 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) (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 ... "); 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the 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

Lt. Leo Fitzpatrick SPR18/233 Page 2 March 8, 2018 The Department's February 21st response In its February 21st response, the Department indicated that the report pertaining to Dispatch Log # 15-17505 has been withheld, in its entirety, pursuant to Exemption (c) due to medical information and an invasion of personal privacy. 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). 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); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 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). 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 ofReal 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. I d. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Lt. Leo Fitzpatrick SPR18/233 Page 3 March 8, 2018 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, 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. The Department did not provide any support to claim that the report may be withheld under both clauses of Exemption (c) as medical information and information that relates to intimate details of a highly personal matter. Therefore, I find that the Department did not meet its burden of specificity in claiming Exemption (c) to withhold the report in its entirety. Obligations of the Department in responding The Department is advised that it has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Furthermore, the Department's February 21st response did not contain the specificity required in identifying any records responsive to the request when denying access to a public record. The Department has claimed that Exemption (c) applies to withhold the requested records; however, it is unclear what record(s), besides a report, the Department is withholding. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, §1 O (b )(iv); 950 C.M.R. 32.06(3)( c)( 4). Consequently, the Department must identify the type of record(s) it has in its possession. I understand a Public Records Division staff attorney contacted your office about this matter. Order The Department did not provide the specific reasons for withholding responsive records, including the specific exemption or exemptions upon which the withholding is based, as required by law to withhold records. Given that the Department did not meet the burden to demonstrate the records are not public, the Department is ordered to provide Mr. Haddadin with responsive records to the request in a manner consistent with this order, the Public Records Law and its Regulations within ten ( 10 ) 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

Lt. Leo Fitzpatrick SPR18/233 Page 4 March 8, 2018 pre@sec.state.ma.us. The Department may request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Jim Haddadin Ms. Mary Carney, Records Division