Richard DiNatale v. Pittsfield, City of - Police Department (SPR 20180757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2018 SPRlS/757 Kerri Striebel City of Pittsfield - Police Department 39 Allen Street Pittsfield, MA O1 201 Dear Ms. Striebel: I have received the petition of Richard DiNatale appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on April 25, 2018, Mr. DiNatale requested the 911 audio recording regarding an incident that occurred on February 20, 2015. The Department provided a response on May 16, 2018, denying access to responsive records pursuant to Exemption ( c) of the Public Records Law. Urisatisfied with the Department's response, Mr. DiNatale petitioned this office and this appeal, SPR18/757, 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, § lOA(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, § 1O (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, § 1O (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

Kerri Striebel SPR18/757 Page2 June 7, 2018 The Department's May 16th response In its May 16, 2018 response, the Department asserts that " ... the requested material is exempt from disclosure. Specifically, Exemption C, (1) (2): 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. Note: this record contains intimate details of a highly personal nature and medical information." Exemption (c) The Department claims it withheld the responsive record from disclosure 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). First clause ofE xemption (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 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). Second clause ofE xemption (c) - privacy 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)

Kerri Striebel SPR18/757 Page 3 June 7, 2018 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. Based on the Department's response, I find that to the extent that portions of the record contain medical files or information, those portions may properly be withheld under the first clause of Exemption (c). 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. However, I find that the Department does not provide sufficient detail on how the second clause of Exemption ( c) applies to the responsive record. Considering the PETA analysis, the Department has not demonstrated how the responsive record contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. Also, the Department does not provide information regarding the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 4 77 Mass. at 291-92. Further, I find the Department has not met its burden in demonstrating how the responsive record in its entirety is exempt from disclosure under Exemption (c) of the Public Records Law. The statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979); see also G. L, c. 66, § lO(a). Medical release form In his appeal to this office, Mr. DiNatale attached a copy of a patient authorization form signed by a representative of the decedent whose medical information is the subject of this appeal. Mr. DiNatale claims that this medical release form has been provided to the Department. Therefore, based on the provision of this form, it is unclear why the Department cannot release

Kerri Striebel SPRlS/757 Page 4 June 7, 2018 the responsive record. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is hereby ordered to review the 911 audio, redact where needed and provide Mr. DiNatale with the responsive record, 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 Department 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: Richard DiNatale