Catherine P. McKay v. Stoughton, Town of - Police Department (SPR 20180594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11,2018 SPR18/594 Sergeant Thomas J. Murphy, Jr. Town of Stoughton Police Department 26 Rose Street Stoughton, MA 02072 Dear Sergeant Murphy: I have received the petition of Catherine P. McKay, Esq. on behalf of an identified client, appealing the response of the Town of Stoughton Police Department (Department) to a request for public records. G. L. c. 66, § lOA; seealso 950 C.M.R. 32.08(1). Attorney McKay requested copies of records regarding an identified person, for use in litigating her client's court case in the State of New Hampshire, (Docket No. 622-2017-DM-00496), specifically: "Reports, logs; 911 calls or logs; incident reports or logs; complaints; investigating officers' reports, and any statements written by any complainant." On April 24, 2018, the Department provided Attorney McKay with a motor vehicle citation redacted under Exemption (c) of the Public Records Law. The Department also withheld Report No. 12-98-0F, under the second clause of Exemption (c). Attorney McKay petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Reason for the request In her request letter and petition to the Supervisor, Attorney McKay states that the records are requested in representing an identified person, and the records are sought for open and active court actions in the State ofNew Hampshire, (Docket Nos. 622-2017-DM-00496; 622-2017-DV-00206). The Public Records Law does not distinguish between individuals seeking public records. Attorney McKay's status as an attorney seeking records for a client does not provide her with any greater right of access to public records than any other person. See G. L. c. 66, § 1 0( a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requestor. Therefore, 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

Sergeant Thomas Murphy SPR18/594 Page 2 May 11,2018 Attorney McKay's interest in obtaining the responsive records for the court dispute shall not play a part in whether the records should be released to the public. Furthermore, the Public Records Law appeal process shall not apply to situations in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. 950 C.M.R. 32.08(l)(a). Whereas, the records may be directly related to the active litigation, Attorney McKay may have a unique right of access through the judicial system. 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 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) (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 ... "); 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). The Department's April 24, 2018 response The Department's April 24th response indicates that the motor vehicle citation (citation) was redacted pursuant to the first clause of Exemption (c), and a report withheld under the second clause ofExemption (c) ofthe Public Records Law. Exemption (c) Exemption (c) applies to: 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, 432-33 (1983).

Sergeant Thomas Murphy SPR18/594 Page 3 May 11,2018 First clause ofE xemption (c) The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. ChiefofPolice of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). The first clause of Exemption (c) also allows custodians to withhold medical files or information that is of a personal nature, and relates to a specifically named individual. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); see also Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature 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). The Department's April 24th response merely states the language of Exemption (c) without specifically explaining whether the Department redacted personnel and/or medical information from the citation, and why the first clause of Exemption (c) specifically applies to withhold such information contained in the citation. The Department has not met its burden of specificity in claiming and explaining its Exemption (c) claim to withhold the information redacted from the citation. Second clause ofE xemption (c) 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. The second clause of Exemption (c) 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 (20 17). The types of personal information which the second clause of this exemption is designed

Sergeant Thomas Murphy SPR18/594 Page 4 May 11, 2018 to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. I d. 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. Your April 24th response provides no information to specifically explain what type of report was withheld, in its entirety, under the second clause of Exemption (c), and how it applies to the withheld report. The Department has not shown how the report would cause personal embarrassment to an individual of normal sensibilities; or how the report would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 4 77 Mass. at 292. In addition, the~ Department did not apply the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested report, or portions of the report, substantially outweighs the seriousness of any invasion of privacy. I d., at 291-92. The Department did not meet its burden of specificity in claiming the second clause of Exemption (c) by neither explaining how the report, in its entirety, contains intimate details of a highly personal nature, and that the public's interest in the subject matter of the report does not outweigh the seriousness of the invasion of privacy, if the record were disclosed to the public. Specificity in responding and claiming exemptions Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive report, in their entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department has also not met its burden of demonstrating how Exemption (c) applies to allow the Department to withhold certain information in the citation. The Department is advised that it must produce any non-exempt, segregable portions of public records. G. L. c. 66, § 1 0(a ). Order Given that the Department did not provide the specificity required in withholding a report in its entirety and withholding content from a citation, as required by statute, the Department cannot withhold the report; nor can it withhold the content from the citation. See G. L. c. 66, § 1 O(b )(iv). Accordingly, the Department is hereby ordered to provide Attorney McKay with the responsive report, redacted where necessary, and a response to specifically explain any

Sergeant Thomas Murphy SPR18/594 Page 5 May 11,2018 redaction of the citation, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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 Department may request reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine P. McKay, Esq.