Andrew McIsaac v. Pembroke, Town of - Police Department (SPR 20190036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2019 SPR19/0036 Richard D. Wall Chief of Police Town of Pembroke Police Department 80 Center Street Pembroke, MA 02359 Dear Chief Wall: I have received the petition of Andrew Mclsaac appealing the response of the Town of Pembroke Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mclsaac requested a copy of "all logs; incident reports; 19C (abuse/neglect of disabled persons); 51A (abuse/neglect of children); 19A (abuse/neglect of elderly) reports by [Department] police officers concerning Pembroke Hospital created between 1/1/2018 and 12/31/2018." On January 7, 2019, the Department provided Mr. Mclsaac with twenty-five pages of the Department's daily log for the requested dates. Accompanying the records was the Department's reply form indicating the records are withheld pursuant to Exemption (a) - mental health facility records (G. L. c. 123, § 38), and Exemption (c) - "Invasion of Privacy (personnel and medical information). The Department did not provide any specificity regarding its denial. Its response was a form with check-off boxes. As a result, Mr. Mclsaac petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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 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

Chief Richard D. Wall SPR19/0036 Page2 January 18, 2019 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 January 14, 2019 response After this appeal was opened, the Department provided a response on January 14th regarding its Exemptions (a) and (c) claims to withhold the incident reports in their entirety. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). 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. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). 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. In its January 14th response, the Department cites G. L. c. 119, § 51E and G. L. c. 111, § 70E as a means of withholding the reports. Your January 14th response asserts, "[t]he statutory provisions dictate the confidentiality of these medical records under state law. Specifically, with respect to the abuse records at issue during this time frame, the [Department] maintains that they involve health information, including mental health information and allegations regarding abuse provided to Pembroke Hospital regarding specifically named individuals for the purpose of medical treatment. Further, with respect to the requested G. L. c. 119, § 51A reports, such

Chief Richard D. Wall SPR19/0036 Page 3 January 18, 2019 records in the [Department's] possession are confidential, as set forth by statute, G. L. c. 119, § 51E." The statute cited by the Department restricts records in the possession of the Department of Children and Families (DCF). I find that the Department has not met its burden of specificity in withholding, in their entirety, the incident reports drafted and in the possession of the Department under Exemption (a) and the statutes cited. 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 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 will be of a sufficiently personal nature 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 has withheld the reports in their entirety due to any medical information under the first clause of Exemption (c ) . However, the Department has not met its burden of segregating medical information from the incident reports drafted by the Department and providing the balance of the reports to Mr. Mclsaac. Second clause of (c) -privacy The Department also claims that the incident reports may be withheld in their entirety due to information concerning individuals' medical care, injuries, mental health and treatment regarding specifically named individuals. The Department posits, "the release of the requested documents may implicate the individuals and others, including the individuals' family, privacy rights and disclose otherwise private information providing the individuals involved in the incident." 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.

Chief Richard D. Wall SPR19/0036 Page4 January 18, 2019 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. The Department has not detailed what types of personal information are contained within the text of the incident reports, nor has the Department applied the 3-part test in PETA to withhold any information that the Department asserts is private information. Id. The Department has not met its burden of specificity in claiming the second clause of Exemption ( c) to withhold the entirety of the reports. Burden of specificity; duty to segregate 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 records, in their entirety, are 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). In camera inspection At this time, I wish to inspect each record in camera to verify whether any portion of the individual records may be released after redacting exempt material under the exemptions in the Public Records Law. See 950 C.M.R. 32.08(6) (Supervisor may require an inspection of the

Chief Richard D. Wall SPR19/0036 Page 5 January 18, 2019 requested record(s) in camera during any investigation or proceeding initiated pursuant to 950 C.M.R. 32.08). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of each document. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6) (Supervisor may require an inspection of the requested record(s) in camera during any investigation or proceeding initiated pursuant to 950 C.M.R. 32.08); see also G. L.c. 66, § 1 (Supervisor statutorily empowered to adopt regulations to implement the provisions of the Public Records Law). This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Documents are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Documents are submitted for the limited purpose of inspection. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of his duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit a copy of the relevant documents to this office upon a promise of confidentiality. This office does not release documents reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, documents reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with a further explanation of its position regarding the applicability of its exemption claims. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Conclusion Accordingly, the Department is ordered to provide this office with all the incident reports responsive to Mr. Mclsaac's public records request without delay. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Andrew Mclsaac