Mark J. Esposito, Esq. v. Worcester, City of - Office of the City Manager (SPR 20180270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 15, 2018 SPR18/270 Joshua A. Martunas Records Access Officer Office of the City Manager City Hall, 455 Main Street Worcester; MA O1 608 Dear Mr. Martunas: I have received the petition of Attorney Mark Esposito appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Esposito requested "copies of all records within the possession, custody, or control of the City of Worcester and/or its Police Department pertaining to the investigation" of an identified matter. The City provided redacted records claiming the redacted portions of the responsive record are exempt from disclosure pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7 (26)(a), (c), (f). 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, § 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, § lO(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

City of Worcester SPR18/270 Page 2 March 15, 2018 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 Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Esposito's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Esposito may wish to consider another means of seeking to obtain any existing responsive records. Exemption (a) The City indicates that it withheld portions of the responsive records pursuant to the Criminal Offender Record Information (CORI) Act, the Health Insurance Portability and Accountability Act (HIPAA), and G. L. c. 1 llE, § 18. 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."

City of Worcester SPR18/270 Page 3 March 15, 2018 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 City cites the CORI statute as applicable to withhold the records pursuant to Exemption (a). The City indicates "[t]he responsive records contain Criminal Offender Record Information subject to required redaction pursuant to M.G.L. c.6 § 167; therefore, the records have been redacted accordingly." The City also cites HIP AA and M. G .L. c. 111 E, § 18 as applicable to withhold the records pursuant to Exemption (a). The City indicates "[t]he responsive records contain protected health information ("PHI") specifically related to substance abuse and mental health treatment associated with specifically named individuals, the disclosure of which is prohibited pursuant to HIP AA and M.G.L. c.11 lE, §18. Under the HIP AA Privacy Rule, 45 C.F.R. § 164.512 (f) disclosure of certain PHI to law enforcement is permitted for limited purposes; such purposes do not include the public dissemination of PHI. Therefore, the responsive records have been redacted." Exemption (c) The City 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 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

City of Worcester SPR18/270 Page 4 March 15, 2018 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, 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 City indicates that "[c ]ertain information has been redacted including the names of witnesses, next of kin, personal medical information, personal telephone numbers, and social security numbers of private citizens, pursuant to M.G.L. c. 4 §7 (c)." Further, the City indicates that "[w]ith respect to the requested records, the City has determined the privacy interest associated with the disclosure of portions of the requested records (specified above) outweighs the public interest in the disclosure." Exemption (I) The City indicates 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

City of Worcester SPR18/270 Page 5 March 15, 2018 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)(±). 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. The City indicates "identifying information relating to reporters and witnesses has been redacted as such information is exempt from disclosure pursuant to exemption(±)." Burden of specificity 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 Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City's response did not contain the specificity required in a denial of access to public records. The City has not met its burden to justify the redactions within the responsive records. With respect to its Exemption (a) claim, the City has cited the CORI statute as applicable to withhold portions of the records. The City indicates "[t]he responsive records contain Criminal Offender Record Information subject to required redaction pursuant to M.G.L. c.6 §167; therefore, the records have been redacted accordingly." Based on the City's response, it is unclear how the redacted portions constitute CORI. The City also cites HIP AA and M.G.L. c. 11 lE, § 18 as applicable to withhold portions of the records pursuant to Exemption (a). The City indicates "[t]he responsive records contain protected health information ("PHI") specifically related to substance abuse and mental health treatment associated with specifically named individuals, the disclosure of which is prohibited pursuant to HIP AA and M.G.L. c.11 lE, §18. Under the HIP AA Privacy Rule, 45 C.F.R. §

City of Worcester SPR18/270 Page 6 March 15, 2018 164.512 (f) disclosure of certain PHI to law enforcement is permitted for limited purposes; such purposes do not include the public dissemination of PHI. Therefore, the responsive records have been redacted." However, the City did not explain the section ofHIPAA that the City relies on nor did it provide sufficient specific explanation as to either statutes' applicability. As a result, I find that the City has not met its burden in claiming Exemption (a) to withhold the records or portions of the records. With respect to its Exemption (c ) claim, the City indicates that "[c ] ertain information has been redacted including the names of witnesses, next of kin, personal medical information, personal telephone numbers, and social security numbers of private citizens." The City further indicates that "[w]ith respect to the requested records, the City has determined the privacy interest associated with the disclosure of portions of the requested records (specified above) outweighs the public interest in the disclosure." Although the City provides examples of the type of redacted information, the nature of each redaction is unclear. Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Specifically, it is unclear which clause the City is claiming and what to specific portions of the records it applies. The City's response does not sufficiently offer specific explanation as to how either clause permits non-disclosure of the redacted portions of the records. With respect to its Exemption (f) claim, the City indicates "identifying information relating to reporters and witnesses has been redacted as such information is exempt from disclosure pursuant to exemption (f)." Based on the City's response it is uncertain whether the responsive records pertain to an ongoing investigation. The City must explain the subject of the investigation and describe how the requested records are part of the investigation. Further, the City did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). The City's response, specifically any explanation of each exemption's applicability to the redacted portions, does not reach the level of specificity required. As a result, I find that the City did not satisfy its burden to permit redaction of the responsive records. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to withhold or redact portions of the requested records in order to comply with the Public Records Law and its Access Regulations. I understand a Public Records Division staff member contacted you about this matter and you indicated the City provided a supplemental response to Attorney Esposito on March 7, 2018. In said response, a copy of which was provided to this office, the City indicates that "[a]ny request pursuant to the public records statute must [be] treated identically by the city regardless of the purpose of the request." See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976).

City of Worcester SPR18/270 Page 7 March 15, 2018 Order Accordingly, the City is hereby ordered to provide Attorney Esposito with 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. The City 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: Mark J. Esposito, Esq.