Samuel A. Segal v. Lexington, Town of - Police Department (SPR 20180850)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25,2018 SPRl81850 Captain Michael McLean Town of Lexington Police Department 1575 Massachusetts Avenue Lexington, MA 02 173 Dear Captain McLean: I have received the petition of Samuel A. Segal, Esq. appealing the response of the Town of Lexington Police Department (Department) to a request for public records. G. L. c. 66, tj 1OA; -see -also 950 C.M.R. 32.08(1). Specifically, on May 31,2018 Attorney Segal requested a copy of the police report for an accident that occurred in the Town of Lexington on Woburn Street on May 23,2018 involving two identified individuals, including his client. The same day, the Department provided a redacted version of the accident report. Attorney Segal petitioned the Supervisor of Records (Supervisor) seeking the identifying information of the passengers in the motor vehicle and the witness to the accident due the critical nature of the information to prosecution of the claim. As a result, this appeal was opened. Status of tlze requestor; reason for the request It is important for Attorney Segal to understand that his interest in the responsive record to represent his client in a legal matter does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Segal's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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, tj 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 One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Captain Michael McLean Page 2 June 25,201 8 form or characteristics, made or received by any officer or employee of any town of the Comnmonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, 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 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, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Tlze Department's May 31'' and June 20,2018 email response; telephone discussion The Department provided Attorney Segal with the responsive motor vehicle and bicycle accident report in redacted format. Attorney Segal appealed the redaction of the witness's identifying information and the redaction of the identifying information of occupants/passengers in the motor vehicle operator's automobile. In a June 21Stt elephone conversation with a Public Records Division attorney, you explained that the Department redacted the identifying information of the witness and occupants because that information is private information under the Public Records Law under Exemption (f). You also informed this office that the occupants of the motor vehicle operator's car are minors under the age of eighteen. You also indicated that you would be willing to provide Attorney Segal with the responsive information of the witness outside of the Public Records Law, if he contacted you directly. 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., 3 88 Mass. 427,432-33 (1 983). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to laow against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Cornm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis.

Captain Michael McLean Page 3 June 25,2018 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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Aaric. 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. 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 Department explained that the identities of two individuals are minors under the age of seventeen. The Department posits that the identities of the two minors are protected under the second clause of Exemption (c). You explained that release of their identities would likely expose them to further stress which initially precipitated from the event. Given the fact that Attorney Segal seeks to personally contact all the parties and witnesses to the event, you conclude that the privacy rights of the minors would be violated. You informed this office that no identifying information of the minors has been released to the public; therefore, the information is not available from another source of public information. The Department contends that normally a minor's privacy is protected in other situations, such as in juvenile delinquency case situations. G. L. c. 119, 5 60A. Indeed, the Legislature has talten great care to protect the privacy, health and welfare of minors in this Commonwealth. -See G . L. c. 51, 5 4 (street list); G. L. c. 71, 5 34D (student records); and G. L. c. 119, 5 51F (Department of Children and Family records). Based on the information provided to this office, I find that Department has properly withheld the identifying information of the minors under the second clause of Exemption (c). Exemption (JI 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

Captain Michael McLean Page 4 June 25,2018 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. Bounas v. Chief of Police of Lexins$on, 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 Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (19 79). 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. In its June 2oth responseand during the June 21Stt elephone discussion, the Department asserts that releasing the witness identification information will impact the individual's privacy. A review of the redacted copy of the report provided to this office by Attorney Segal reveals that the Department redacted the name, address and telephone number of the voluntary witness. The Department informed this office that it is withholding the voluntary witness to the accident under Exemption (f). Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). I find that the Department has met its burden of specificity in withholding the identifying information of the witness to this incident under Exemption (f). Conclusion Accordingly, where I find that the Department has met its burden of properly withholding the identifying information of witnesses pursuant to Exemption (f) and identifying information of the minors pursuant to Exemption (c), I consider this appeal closed. If Attorney Segal is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, $ 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Captain Michael McLean Page 5 June 25,201 8 Sincerely, u Rebecca S. Murray Supervisor of Records cc: Samuel A. Segal, Esq.