Geraldine Houde v. Bellingham, Town of - Police Department (SPR 20180846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25,201 8 SPR181846 Gerard L. Daigle Chief of Police Town of Bellingham - Police Department 30 Blackstone Street Bellingham, MA 020 19 Dear Chief Daigle: I have received the petition of Geraldine Houde appealing the response of the Town of Bellingham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; -see -also 950 C.M.R. 32.08(1). Specifically, Ms. Houde requested a copy of police reports from December 6, 1978; December 7, 1978 and December 8, 1978 pertaining to an identified person. The Department's March 14'~re sponse indicates that on the advice of the Office of the District Attorney in Norfolk County, the Department is denying the request, in its entirety, pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), Exemption (c) and Exemption (f) of the Public Records Law. G. L. c. 4, 7(26)(a), (c) and (f). As a result, Ms. Houde petitioned this office and this appeal was opened. 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 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, fj 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) (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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832- Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Chief Gerard L. Daigle Page 2 June 25,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 9 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are : specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "all not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Criminal Offender Record Information Act The Department's March 14~'r' esponse indicates that it is withholding the police reports under the CORI Act. G. L. c. 6, ij 167. 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. See Section 3 of Chapter 69 of the Acts of 201 8. Given that the legislation 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

Chief Gerard L. Daigle Page 3 June 25,2018 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, fj 167 (emphasis added). It is unclear how all of the responsive police reports from 1978 are exempt under the CORI Act; specifically, it is unclear how the responsive records constitute "information recorded in criminal proceedings that were not dismissed before arraignment," as described above. Therefore, the Department has not met its burden to withhold responsive records under the CORI Act. 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 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). First clause of Exemption (c) medical information - The first clause of Exemption (c) applies to medical records or information that is of a personal nature and relates to a specifically named individual is exempt f?om disclosure. See Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); see also Globe Newspaper Q., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature 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). It is unclear from the Department's March 14'~re sponse whether the reports contain medical information, nor is it is clear why any medical information pertaining to the identified person cannot be redacted from the 1978 police reports.

Chief Gerard L. Daigle Page 4 June 25,2018 Second clause of (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: (I) 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. $ee 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 Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 41 5,427 (1 988) (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 laowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. The Department's March 14~r"e sponse does not specifically explain how the second clause of Exemption (c) applies to withhold the police reports in their entirety, nor does it explain why the reports cannot be redacted to protect information that "may constitute an unwarranted invasion of personal privacy" contained in the records. I find that the Department has not met its burden of specificity in claiming both clauses of Exemption (c) to withhold the records. Exemption @ Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

Chief Gerard L. Daigle Page 5 June 25,201 8 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Cornm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by- case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. It is unclear from the Department's response how disclosure of police reports from an incident in 1978, even in a redacted format, will prejudice any investigative efforts at the present time. The Department must specifically explain the current status of any on-going investigation. I find the Department has not met its burden of specificity in claiming Exemption (f) to withhold the reports. Burden of specificity in responding and claiming exemptions; duty to segregate The Department did not identify the records or categories of records in its possession that are being withheld. See G. L. c. 66, 5 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.. ."); see also Globe Newspaper Co., 419 Mass. at 857; Flatley, 419 Mass. at 511. Furthermore, the Department did not specifically explain why all the police reports from 1978 pertaining to an identified person are exempt, in their entirety, under Exemptions (a), (c) and (f). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 lO(b)(iv); see also Globe Newspaper Co., 4 19 Mass. at 857; Flatley, 4 19 Mass. at 5 11 . The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, fj lO(a). Order Accordingly, the Department is hereby ordered to review the reports, redact where necessary, and provide the records to Ms. Houde in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response

Chief Gerard L. Daigle Page 6 June 25,2018 that accompanies the records and that explains the redactions 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: Geraldine Houde