Nicole M. Avitabile, Esq. v. Massachusetts State Police (SPR 20180444)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 19, 20 18 SPR181444 Alycia DeAngelis, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 17 02 Dear Attorney DeAngelis: I have received the petition of Nicole Avitabile, Esq. appealing the response of the Department of State Police Office of the Chief Legal Counsel (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 14, 201 8, Attorney Avitabile requested "any and all public records related to motor vehicle accidents involving parties with injuries that occurred on the Massachusetts Turnpike (Route 90) from February 1,2018 to February 13,2018 ." Previous appeals This request was the subject of previous appeals. See SPR181268 Determination of the Supervisor of Records (March 15, 201 8); SPR181349 Determination of the Supervisor of Records (March 29,2018). I closed SPR181349 by ordering the Department to provide Attorney Avitabile with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the March 29fi determination, the Department provided a response on April 3, 20 1 8, claiming the responsive records are exempt from disclosure pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). Unsatisfied with the Department's response, Attorney Avitabile petitioned this office and this appeal, SPR181444, was opened as a result. 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 documentary materials or data, regardless of physical - One Ashburton Place, Room 1719, Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Alycia DeAngelis, Esq. Page 2 April 19, 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, $ lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. The Department's April 3rdr esponse In its April 3,2018 response, the Department indicates that the request seeks crash report% It further asserts that because these crash reports contain medical information, they are exempt from disclosure under Exemption (c) of the Public Records Law. Exemption (c) The Department claimed it withheld responsive records pursuant to the first clause of 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. 427,432-33 (1 983). The first clause, relevant to this determination, creates a categorical exemption for personnel and Id. medical 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 Cornrn. 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

Alycia DeAngelis, Esq. Page 3 April 19,201 8 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). The Department indicates that crash reports usually "convey home address, license number . . . date of birth of involved drivers, passengers, vehicle owners, and non-motorists, a narrative of how the incident occurred, witness statements and witness contact information." The Department indicates that when an involved party is injured, the crash report would include "condition; injury status; whether or not the party was transported from the scene; and finally what medical facility the party was transported to." The Department states that the injury status is further qualified by terms such as "'non-fatal,' 'fatal,' and 'incapacitating (non-fatal)."' The Department asserts that such reports contain medical information which is exempt from disclosure under Exemption (c) "even those medical details which are germane, such as the name of the hospital an individual was transported to with minor injuries . . ." The Department cites Viriyahiranpaiboon v. Dep't of State Police, 52 Mass. App. Ct. 843, 848 (2001) and other cases to support its position. With respect to whether records can be redacted, the Department indicates that "segregation of the exempt material on each responsive report will not serve the interests of the exemption." It indicates that should it provide records with medical information redacted, the names of the individuals will still be visible in the report. "Thus [Attorney Avitabile] would have the names of injured parties, but not the details of their injuries. 'Where indirect identification of the individual is still possible even after deletion of particular identifying details from medical files or information, such redaction is insufficient to bring medical documents outside the 'medical files of information' exemption to the state's public records law.' Logan v. Commissioner of Dept. of Indus. Accidents, 68 Mass. App. Ct. 533 (2007)." Based on the Department's response, I find that the Department has met its burden to show that crash reports contain medical information. As such, to the extent that portions of the responsive records contain medical information, the Department may permissibly withhold such portions from disclosure. However, although portions of the requested records contain medical information, it remains unclear why the records may be withheld in its entirety. It should be noted that any segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Reinstein v. Police Cornm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is hereby ordered to provide Attorney Avitabile with a response to the request, 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.

Alycia DeAngelis, Esq. Page 4 April 19, 201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicole Avitable, Esq.