Victor A. Greenstein v. Hamilton, Town of - Police Department (SPR 20181134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10,201 8 SPR1811134 Christine Lacrom Town of Hamilton - Police Department 265 Bay Rd South Hamilton, MA 0 1982 Dear Ms. Lacrom: I have received the petition of Victor A. Greenstein appealing the response of the Town of Hamilton Police Department (Department) to a request for public records. G. L. c. 66, 5 1OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Greenstein requested an identified incident -- report. The Department responded to his request by providing responsive records redacted pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, fj 7(26)(c). 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, fj 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, 8 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, 8 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(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

Christine Lacrom Page 2 August 10,201 8 Exemption (c) As part of the Department's response, it provided Mr. Greenstein with a form indicating the Department had made redactions pursuant to Exemption (c) of the Public Records Law and includes the following explanation, "[ildentities of victims, witnesses, reports parties or informants. Also medical information or anything of a personal nature." In subsequent email correspondence between Mr. Greenstein and the Department, the Department indicates that the responsive record "contained both public and non-public information. The non-public information was segregated. It was segregated under exemption (c) of the public records act." 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 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, relevant to this determination, creates a categorical exemption for personnel and a. medical information that relates to an identiJiable individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a specij'ically named individual is exempt from disclosure. Brogan v. School Cornrn. 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 Company, 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). 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

Christine Lacrom Page 3 August 10,2018 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 public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. While this appeal was pending, the Department provided this office with a copy of an unredacted version of the responsive records. Despite the Department's responses and provision of the unredacted records, it remains unclear how Exemption (c) applies the redacted portion in its entirety. Specifically, it is unclear which clause of Exemption (c) the Department is claiming and how the redacted information constitutes the type of information that either clause of Exemption (c) is designed to protect. Speczjicity 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. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 1 1; Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d 252,270 (D.D.C. 2004) (explaining that in camera review is no substitute for the Government's obligation to provide detailed justifications). The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response cites Exemption (c) without any further explanation as to the exemption's applicability to the redacted portion. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department failed to satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Order Accordingly, the Department is ordered to provide Mr. Greenstein with a response to the request, 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.

Christine Lacrom Page 4 August 10,2018 Sincerely, Rebecca S. Murray V Supervisor of Records cc: Victor A. Greenstein Lt. Scott G. Janes