Todd Wallack v. Danvers, Town of - Police Department (SPR 20180514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 1, 2018 SPRlS/514 Phillip Tansey Captain of Administrative Services Danvers Police Department 120 Ash Street Danvers, MA O1 923 Dear Captain Tansey: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Danvers Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested the following: Electronic list or spreadsheet of applications for criminal complaints in 2017 submitted for a "show cause" hearing before a clerk-magistrate judge at the local district court, including the name of the suspect, address of the suspect, date of birth of the suspect, gender of the suspect, race of the suspect, offense code, offense description, offense date, application date, outcome of the hearing (if all of those data fields are available). I believe the data can be retrieved with a query from your department's electronic records management system. If possible, I ask that you provide the data in machine readable form, such as an Excel spreadsheet or delimited text file. The Department responded on April 4, 2018 by providing records with the names redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c); G. L. c. 6, § 167. Current appeal Mr. Wallack notes in his request that "I have no objection if you withhold the identities of suspects who are juveniles or accused of sexual/domestic violence." He also indicates "I am also not seeking the names of any confidential witnesses or investigative techniques." The Department explains that it redacted the names of suspects/offenders under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), as well as Exemption (c). 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

Captain Phillip Tansey SPR18/512 Page 2 May 1, 2018 Exemption (a) In support of its redaction of the names of the suspects/offenders, the Department asserts "[t]he information gathered by the Danvers Police Department was accessed utilizing Criminal Offender Record Information (CORI) information and/or contains information (Name) that would identify a particular person's CORI information." It should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13, 2018, there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 ( emphasis added). It is unclear how the redacted material is exempt under the CORI Act; specifically, it is uncertain how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. However, because this change to the definition of CORI occurred subsequent to the Department's response to Mr. Wallack, the Department may provide supplemental information addressing this issue. 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

Captain Phillip Tansey SPR18/512 Page 3 May 1, 2018 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 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.

Captain Phillip Tansey SPR18/512 Page4 May 1, 2018 The Department indicates "[t]he information gathered by the Danvers Police Department contains personal information (Name), the disclosure of which may constitute an unwarranted invasion of personal privacy." 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, § 1O (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 ... "); Flatley, 419 Mass. at 511. I find the Department has not met its burden to justify redacting the names of suspects/offenders within the responsive records under Exemption ( c ). Specifically, the Department's response does not explain, under the factors described in PETA , the nature of the privacy interest in the redacted information, particularly in light of the fact that similar information may be available through the daily police log as contemplated in G. L. c. 41, § 98F. See PETA, 477 Mass. at 292 (one factor in the analysis of Exemption (c) is whether the same information is available from other sources). Mr. Wallack notes in his appeal that "the information concerns the activities of a police department. Because police departments have enormous power to conduct arrests and bring criminal charges, there is also an expectation that their activities be public to the extent possible." The Department's response does not address the balancing test discussed in PETA. Id. at 291. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack