Drew Virtue v. Lowell, City of - City Solicitor (SPR 20181120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords August 10,2018 SPRl811120 Christine O'Connor, Esq. City of Lowell - City Solicitor 375 Merrimack Street # 3 Lowell, MA 0 18 52 Dear Attorney O'Connor: I have received the petition of Drew Virtue on behalf of the New England Innocence Project appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 13,2018, Mr. Virtue requested "any information, records and/or physical evidence including but not limited to police statements, reports, written affidavits, witness statements, videotapes, recordings, or photographs in connection with or reference to the case of Commonwealth v. Jonathan Stewart . . ." The City provided a response on June 29,201 8, denying access to responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (f). The City also contends that the defendant in the above referenced matter has a unique right of access to the requested records. Unsatisfied with the City's response, Mr. Virtue petitioned this office and this appeal, SPR18/1120, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the See circumstances of the requestor. Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Mr. Virtue's purpose in making the request has no bearing on the public status of any existing responsive records. Tlze 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 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

Christine O'Connor, Esq. Page 2 August 10,20 18 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, 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, 9 lO(b)(iv); 950 C.M.R. 32.06(3); see 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). 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, tj 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 City's June 29& response In its June 29,2018 response, citing 950 C.M.R. 32.06(1)(g), the City asserts that "[tlhe Public Records Law does not apply to records obtainable through the discovery process, court order, or other judicial means. . . . Based on the information that you have provided, the records you requested fall within the confines of this provision, as Mr. Stewart maintains a unique right to access the records relative to his conviction under state law. As a result, your Request is not subject to the Public Records Law." The City further claims that even if Mr. Virtue's request were to be viewed as proper under the Public Records Law and its Access Regulations, the following exemptions would apply to withhold the records from disclosure. Exemption (a) The City cites G. L. c. 41, 597D; G. L. c. 6, 5 167, the Criminal Offender Record Information (CORI) Act; G. L. c. 66, 9 10B; and the Health Insurance Portability and Accountability Act (HIPAA), as they operate through Exemption (a) to withhold responsive records. 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 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Christine O'Connor, Esq. Page 3 August 10,201 8 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 "shall 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. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statutes provide in relevant part: Confidentiality of rape and attempted assault reports All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality . . . Please note that an updated definition of CORI is currently in effect. CORI is defined as: [Rlecords 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 reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration.

Christine O'Connor, Esq. Page 4 August 10,2018 The home address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. . . . The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. c. 66, 9 1O B. Under its Exemption (a) claim, the City asserts that the records "are protected from disclosure pursuant to G. L. c. 41, 5 97D, which requires that police departments maintain the confidentiality of reports of rape. . . . The Supreme Judicial Court has interpreted this statute by its plain terms to require that police departments maintain and assure the confidentiality of any and all reports of rapelor sexual assault, including all conversations between police officers and the victims of said offenses. See Commonwealth v. George W Prescott Pub1 'g Co., LLC, 463 Mass. 258,265-266 (2012). . . . As a result, the City must withhold all records responsive to your request in their entirety . . ." The City further notes that ". . . the records . . . contain the names, home addresses, telephone numbers, dates of birth, social security numbers and other private information of both victims and witnesses of adjudicated crimes which is exempt from disclosure" under G. L. c. 66, 5 10B. The City also contends that the records also contain CORI which is exempt from disclosure and information protected under HIPAA. Other Exemptions The City also cites other Exemptions to support its position. The City claims that Exemptions (c) and (f), also precludes the disclosure of the requested records. Exemption (c) The City claims it withheld responsive records pursuant to Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of:

Christine O'Connor, Esq. Page 5 August 10,2018 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. 427,432-34 (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." Td. 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 (1 987). Under the first clause of Exemption (c), the City indicates that the records "contain medical files andlor information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." Second clause of Exemption (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) 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 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).

Christine O'Connor, Esq. Page 6 August 10,2018 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 lmowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Under the second clause of Exemption (c), the City indicates that information such as "names, home addresses, telephone numbers, dates of birth, social security numbers and other private information of individuals other than just those specifically identified as witnesses or victims would also be exempt from release." Exemption &I The City also states that the records are exempt from disclosure pursuant to Exemption (f) of the Public Records law. 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 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 Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (1 979). 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. Under its Exemption (f) claim, the City asserts that the requested records ". . . contain information, such as witness statements and victim identification data, the release of which would compromise effective law enforcement and LPD internal investigations. . . ."

Christine O'Connor, Esq. Page 7 August 10,201 8 Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatlev, 419 Mass. at 511. The City did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under G. L. c. 41, § 97D. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 9 10(b)(iv); 950 C.M.R. 32.06(3)(~)(4). Consequently, in order to facilitate a determination as to the applicability of the Exemption claims made by the City to withhold responsive records, I find that a custodial index would be useful in facilitating my review of this matter. &g 950 C.M.R. 32.08(5). Said index shall be a public record and shall be contained in one document, adequately describe each withheld record or redaction from a released record, state the exemption or exemptions claimed for each withheld record or each redaction of a record, and the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is Id. exempt. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the City is ordered to provide this office with a custodial index of the requested records. Such index must be provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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: Drew Virtue