Shelley Murphy v. Massachusetts State Police (SPR 20181578)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 13, 2018 SPRlS/1578 Michael Halpin, Primary RAO Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Shelley Murphy of the Boston Globe appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Murphy requested "[a]ny logs or records indicating the date of each accident that CARS responded to from 2014 to July 2018, the status of each of these cases, i.e. the date of completion for each case or whether the analysis is still pending." The Department responded to her request by providing records redacted pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 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, § 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 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); 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). 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburtori Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Michael Halpin, Esq. SPR18/1578 Page 2 November 13, 2018 The Department's response In its response, the Department indicates that within the responsive records "[i]nformation under the Incident Type column has been withheld under G.L. c. 4, § 7, cl. 26 (c), which states that medically sensitive information is exempt from public disclosure. Categories such as 'fatal' and personal injury' have been removed under this recognized privilege." The Department additionally cites to a previous determination. See SPR18/515 Determination of the Supervisor of Records (May 1, 2018). The Department indicates that "[i]nformation under the Case Number column has been withheld similarly under G.L. c. 4, § 7, cl. 26 ( c) insofar as is both medically sensitive information and information, which ifreleased, would constitute an invasion of privacy." The Department argues that "[t]he simultaneous release of the report numbers with date and location of the accident may lead to the open sourcing of publicly available information thereby allowing one to determine the identities of the individuals, and their medical status, involved in each accident." Exemption (c) 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 G. L. c. 4, § 7(26)(c). First clause - medical information 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 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 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). Despite the Department's response, upon this office's review of the redacted records, it remains unclear how release of the case numbers would directly or indirectly identify the individuals to which the medical information relates. Consequently, I find that the Department

Michael Halpin, Esq. SPR18/1578 Page 3 November 13, 2018 has not met its burden to establish that crash reports contain medical information, which can be withheld under the first clause of Exemption (c). Second clause - invasion ofp rivacy 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 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, 477 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. While it is generally held that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. The Department has not shown how the redacted potions would cause personal embarrassment to an individual of normal sensibilities; or how the redacted portions would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. at 292. It is additionally unclear how the redacted portions are the type of information the second clause of Exemption (c ) is designed to protect. Id. The Department did not meet its burden of specificity in claiming the second clause of Exemption ( c) by neither explaining how the records contain intimate details of a highly personal nature, and that the public's interest in the subject matter of the report does not outweigh the seriousness of the invasion of privacy, if the redacted portions were disclosed to the public.

Michael Halpin, Esq. SPR18/1578 Page4 November 13, 2018 Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Ms. Murphy with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~.~ Supervisor of Records cc: Shelley Murphy