Ryan Bagwell v. Melrose, City of - Police Department (SPR 20181129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13,2018 SPR1811129 Chief Michael Lyle City of Melrose - Police Department 56 West Foster Street Melrose, MA 02 176 Dear Chief Lyle: I have received the petition of Ryan Bagwell appealing the response of the Melrose Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 25,201 8, Mr. Bagwell requested "copies of the standard Massachusetts crash report and all other investigative reports of an accident that occurred on March 9,201 8 at approximately 7:06 a.m. . . . near West Wyoming Ave. and Berwiclc Street . . ." The Department initially provided a response on July 26,2018 denying access to responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, 5 7(26) (c), (f). Unsatisfied with the Department's response, Mr. Bagwell petitioned this office and this appeal, SPR1811129, 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, 5 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, 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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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. One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (617 ) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Chief Michael Lyle Page 2 August 13,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 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 Department's July 26t11re sponse In its July 26, 201 8 response, the Department indicates that the records are exempt from disclosure pursuant to Exemptions (c) and (f) of the Public Records Law. Exemption (c) The Department claims it withheld responsive records 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 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 Id. an identifiable individual and is of a "personal nature." 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). fl Exemption The department 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

Chief Michael Lyle Page 3 August 13,2018 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 (1 976). 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. 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 Ma ss. at 289-90. The Department claims Exemption (f) "applies to information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants. The records requested contain information ongoing and confidential information." Subsequent to the opening of this appeal, as described in an August 9,201 8 response, this office was informed that the Department intends on providing Mr. Bagwell with responsive records pertaining to his request. Conclusion Accordingly, whereas this appeal was opened because of the Department's initial withholding of responsive records, I will now consider this administrative appeal closed. Mr. Bagwell may appeal the substantive nature of the Department's response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Bagwell