Todd Wallack v. Hull, Town of - Law Department (SPR 20180257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2018 SPR18/257 James B. Lampke, Esq. Town Counsel - Town of Hull 115 North Street, Suite 3 Hingham, MA 02043 Dear Attorney Lampke, I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Hull Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested “[a]ny applications for criminal complaints created by the police department from January 2017 through September 2017.” Mr. Wallack indicates “[i]f possible, please only include cases where the applications were denied and a clerk-magistrate or assistant clerk refused to issue a criminal complaint. If that is not possible, then please provide all the applications created during that time period. If the search identifies more than 20 applications, please only provide the first 20 records located.” He further notes that “[i]f you cannot locate copies of the full applications for criminal complaints in each case, please provide the documentation you do have on file for each case (such as the police incident reports).” Mr. Wallack also references a recent Superior Court decision regarding Criminal Offender Record Information (CORI). See Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Info. Servs. et al., Suffolk Sup. No. 15-1404-D (December 4, 2017) (CORI decision). In a response dated February 28, 2018, the Department provided responsive records with portions redacted under Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f); G. L. c. 6, § 167; G. L. c. 41, § 98F; G. L. c. 214, § 1B. I understand the Department is also compiling incident reports for production, subject to redaction. 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 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

James B. Lampke, Esq. SPR18/257 Page 2 March 16, 2018 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); 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. Exemption (a) The Department asserts that responsive records may be withheld in their entirety under the CORI Act, G. L. c. 41, § 98F, and G. L. c. 214, § 1B as they operate through Exemption (a). See G. L. c. 6, § 167. Exemption (a), 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. In its February 28th response, the Department asserts “[t]he redacted portions would be exempt specifically or by necessary implication by statute, including but not limited to under G.L. c. 6, sections 168 to 178 (CORI) and G.L. c. 214, sec. 1B (privacy rights); statutory and common law defamation law, (particularly given that no criminal process issued); G.L. c. 41, sec. 98F (certain information not to be released as part of a daily log).”

James B. Lampke, Esq. SPR18/257 Page 3 March 16, 2018 CORI It should be noted that this office has previously found that the initiation of criminal proceedings begins at the signing of the criminal complaint. See SPR06/191 Determination of the Supervisor of Records (October 10, 2006); SPR10/152 Determination of the Supervisor of Records (August 27, 2010). Therefore, I find the Department has not met its burden to redact information within responsive records under the CORI Act. G. L. c. 41, § 98F, and G. L. c. 214, § 1B G. L. c. 214, § 1B, the so-called Right to Privacy statute, does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) of the Public Records Law to permit withholding of records. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). I find the Department has not met its burden to redact records pursuant to the Right to Privacy statute. G. L. c. 41, § 98F applies to the maintenance of daily police logs. In his February 28, 2018 appeal Mr. Wallack notes “I also have no objection to withholding any complaints of domestic or sexual violence under MGL 41 Section 98f.” Exemption (c) The Department indicates that it withheld portions of the 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 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, 432-34 (1983). The 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 is sufficiently personal 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). While it is

James B. Lampke, Esq. SPR18/257 Page 4 March 16, 2018 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. 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. 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 notes “[t]he redacted portions of the records that would fall under your request for which disclosure is denied above would fall under this exemption as the disclosure may constitute an unwarranted invasion of personal privacy. Any such release would constitute an unwarranted invasion of privacy rights under the law.” Mr. Wallack notes in his appeal that “I have no objection to the department withholding social security numbers under exemption (c).” However, he also indicates “[t]he department also cited exemption (c), saying it would be an unwarranted invasion of privacy to release the names, dates of birth, and addresses of suspects accused of crimes. There is simply no case law or precedent to support such a contention.” 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality

James B. Lampke, Esq. SPR18/257 Page 5 March 16, 2018 intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); Flatley, 419 Mass. at 511. I find the Department has not met its burden to justify all the redactions within the responsive records under Exemption (c). In particular, the Department’s response does not consider the availability of responsive information contained in the public “Street List.” Massachusetts law requires the creation of “street lists” of all persons residing in the Commonwealth. See Pottle v. School Comm. of Braintree, 395 Mass. 861, 866 (1985). These street lists, which are available to the public in the aggregate, include the names, residential addresses, and occupations for the residents listed. See G. L. c. 51, §§ 4, 6; Pottle, 395 Mass. 861 at 866. Further, I find the Department has not met its burden to withhold dates of birth within the responsive records. Doe v. Registrar of Motor Vehicles, 1 Mass. L. Rptr. 156, 21 (1993) (finding that an individual’s “date of birth is not information that a person of ‘normal sensibilities’ would go to great lengths to keep private”). I also find it is unclear how the Department may withhold names of the individuals accused in the responsive records, particularly in light of the factors described in PETA. See PETA, 477 Mass. at 292. Exemption (f) The Department also explains that it withheld portions of the responsive records 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). 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, 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 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.

James B. Lampke, Esq. SPR18/257 Page 6 March 16, 2018 The Department contends that “[t]he release of this information would likely make persons claiming to be victims of crimes reluctant to step forward and report such conduct.” I find the Department has met its burden to withhold identifying details regarding voluntary witnesses and complainants under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses). I understand a Public Records Division attorney discussed this appeal with you. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack responsive records provided 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. Please note the Department may seek reconsideration of this decision within ten business days of this determination. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack