Nicole M. Avitabile, Esq. v. Massachusetts State Police (SPR 20180515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1,2018 SPRl815 15 Alycia DeAngelis, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 1702 Dear Attorney DeAngelis: I have received the petition of Attorney Avitabile appealing the response of the see Department of State Police (Department) to a request for public records. G. L, c. 66, Ij IOA; also 950 C.M.R. 32.08(1). Specifically, on March 28,201 8, Attorney Avitabile requested "any and all reports related to motor vehicle accidents involving parties with injuries that occurred on Storrow Drive from 03/21/2018 to 03/27/2018 in electronic format." The Department provided a response on April 13,2018 denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, Ij 7(26)(c). Unsatisfied with the Department's response, Attorney Avitabile petitioned this office and this appeal, SPR1815 15, 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, Ij 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, Ij 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, Ij lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (1 995) (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. 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

Alycia DeAngelis, Esq. Page 2 May 1,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 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 13'" response In its April 13,2018 response, the Department indicates that the request seeks crash reports. 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 (1983). 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 Comm. of Westport, 401 Mass. 306, 308 (1 987); Globe Newspaper Co., 3 88 Mass. at 43 8. 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). 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

Alycia DeAngelis, Esq. Page 3 May 1,2018 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." The Department 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 or 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 their 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). See Reinstein v. Police Cornrn'r of Boston, 378 Mass. 28 1,289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a 5 public record is subject to mandatory disclosure. G. L, c. 66, 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Department did not meet its burden to explain how the first clause of Exemption (c) permits it to withhold the crash reports in their entirety, the requested records may not be withheld. Accordingly, the Department is hereby ordered to review the records, redact where necessary, and provide Attorney Avitabile 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@lsec.state.ma.us. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Alycia DeAngelis, Esq. Page 4 May 1,2018 Sincerely, u Rebecca S. Murray Supervisor of Records cc: Nicole Avitabile, Esq.