Matthew H. Greene v. Boston, City of - Police Department (SPR 20181517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 30, 2018 SPRlS/1517 Martha J. DeMaio Director of Public Information City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Matthew H. Greene, Esq. of Boyle Shaughnessy Law, P.C. appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Greene requested all records related to the June 6, 2017 motor vehicle accident involving two identified persons at the intersection of Dartmouth Street and Warren A venue in Boston, Massachusetts. With its July 24, 2018 response, the Department provided Attorney Greene with a five page copy of the incident report. The Department withheld certain information from the report under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). In its July 24th response, the Department indicates that other than the record referenced, the Department has no other records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). As a result of the redactions to the report, Attorney Greene petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Discovery versus Public Records Law requests In his petition to the Supervisor, Attorney Greene indicates that his law firm has been retained to represent one of the parties connected to the accident. Attorney Greene asks this office to obtain a complete, un-redacted copy of the report the Department provided on July 24th. Attorney Greene states, "[a]lthough this matter is pre-suit, we have received a letter of representation from counsel for [an identified person], and we anticipate that a civil action will be filed in the near future .... With respect to information provided by witnesses, without more, 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

Martha J. DeMaio SPR18/1517 Page 2 October 30, 2018 neither this office, nor a reviewing Court, is capable of determining whether the claimed exemption, in fact, applies." 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 circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Greene's purpose in making the request and in attempting to obtain an un-redacted report has no bearing on the public status of the responsive record. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Greene may wish to consider another means of seeking to obtain any additional responsive records, and/or any records in an un-redacted format. 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, § lOA(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, § 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, § 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 ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). The Department's July 24, 2018 response In the Department's July 24th response; it states, "[p]ursuant to [Exemptions] (c) and (f), any confidential investigatory material, medical information and information regarding specific witnesses/victims have been removed to protect their privacy."

Martha J. DeMaio SPR18/1517 Page 3 October 30, 2018 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 G. L. c. 4, § 7 (26)(c). 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 creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. 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). The Department indicated in its July 24th response that medical information contained in the incident report was withheld under Exemption (c). It is my understanding that the medical information relates to an identified person injured in the incident. Given that the withheld medical information is of a personal nature and relates to a specifically identified person, I find that the Department has properly withheld the medical information under the first clause of Exemption ( c ). Second clause of (c) -privacy It is unclear from the Department's July 24th response whether it has withheld other information within the content of the incident report under the privacy clause of Exemption (c). 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

Martha J. DeMaio SPR18/15I 7 Page4 October 30, 2018 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 disputes and reputation. Id. 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, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. With respect to the Department's Exemption ( c) claim, I find that it is unclear from the Department's response whether it is withholding information in the incident report under the privacy clause, and whether the withheld information would result in personal embarrassment to an individual of normal sensibilities. Also, the Department has not addressed whether this information is available from other sources. PETA , 4 77 Mass. at 292. In addition, the Department must provide information regarding the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. Id. at 291-92. In light of the PETA analysis, I find the Department has not met its burden to establish how the second clause of Exemption ( c) applies to withhold certain information contained in the incident report. Exemption (I) 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 G. · L. C. 4, § 7 (26)(±). 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of

Martha J. DeMaio SPR18/1517 Page 5 October 30, 2018 Boston, 3 78 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 id. at 289-290. The Department indicated that it withheld the identifying information of witnesses from the incident report. 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, 3 78 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 may properly withhold identifying information of witnesses and the victim under Exemption (f). In its July 24th response, the Department also indicates that any confidential investigatory material has been withheld from the incident report under Exemption (f). However, the Department has neither described what information it withheld that would fall into the category of confidential investigatory materials; nor, how Exemption (f) allows the Department to withhold the information. Therefore, I find that the Department has not specifically demonstrated that the confidential investigatory materials may be withheld under Exemption (f). Specificity in responding and claiming exemptions The Department did not meet its burden in describing the particular information redacted from the incident report under Exemptions ( c) and (f), and how those exemptions specifically apply to withhold the information. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive information in the records is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is my understanding that the Department was notified that the appeal was opened, was provided with a copy of the appeal, and was contacted by telephone by a Public Records Division staff attorney. Order Accordingly, the Department is ordered to provide Attorney Greene with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Martha J. DeMaio SPR18/1517 Page 6 October 30, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew H. Greene, Esq. Shawn A. Williams, Esq.