Howard M. Cooper, Esq. v. Williamstown, Town of - Police Department (SPR 20190081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2019 SPR19/081 Kyle J. Johnson Chief of Police Town of Williamstown Police Department 31 North Street Williamstown, MA 01267 Dear Chief Johnson: I have received the petition of Howard M. Cooper, Esq. of Todd & Weld, LLP appealing the response of the Town of Williamstown (Town) - Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018, Attorney Cooper requested eight (8) categories of records involving an incident that allegedly occurred on June 10-11, 2016 at a certain location involving two identified individuals, one of which is Attorney Cooper's client. On December 3, 2018, the Department provided Attorney Cooper with a response and fee estimate. On December 2?1h, the Department provided a supplemental response. Basis of the appeal On January 11, 2019, Attorney Cooper petitioned the Supervisor of Records (Supervisor) pertaining to his Requested Item Number 8 for: "any and all presentment or claim or demand letters received by the Town concerning this matter and any responses thereto." Attorney Cooper objects to the Town/Department's December 2J1h response which indicates that the October 11, 2018 Presentment Letter sent to the Town Manager from Thomas Frongillo, Esq. is being withheld in its entirety under both clauses of Exemption (c) of the Public Records Law. Status oft he requestor In his November 19, 2018 request, Attorney Cooper states the underlying incident involved an identified client and another identified individual. It is important for Attorney Cooper to understand that his interest in the responsive record does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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 Kyle J. Johnson SPR19/081 Page 2 January 25, 2019 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 Cooper's status as the attorney for an identified individual will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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, § lO(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 December 27, 2018 response The Department's December 2ih response indicates it is withholding the "presentment letter" in its entirety under both the first and second clause of Exemption ( c) of the Public Records Law. The Department asserts, " ... the Presentment Letter contain[ s] highly sensitive information relating to allegations regarding specific individuals ... Moreover, given the manner in which the Presentment Letter was written by Attorney Frongillo, the letter must be withheld in its entirety so as to not disclose any highly sensitive identifying information concerning individuals involved in this matter." 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).

Chief Kyle J. Johnson SPR19/081 Page 3 January 25, 2019 First clause of (c) The Department indicates in its December 2ih response that the Presentment Letter contains medical information. The first clause of exemption ( c) allows a records custodian to withhold "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). Second clause of (c) - privacy The Department also indicates that the Presentment Letter contains highly sensitive information relating to allegations regarding specific individuals. 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.

Chief Kyle J. Johnson SPR19/081 Page 4 January 25, 2019 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, § lO(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 record, in its entirety, 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). The Department must produce any non-exempt, segregable portions of the public record. G. L. c. 66, § lO(a). In camera inspection I find that the Department did not meet its burden of specificity in withholding the Presentment Letter in its entirety. At this time, I wish to inspect the Presentment Letter in camera to verify whether any portion of the record may be released. After I complete my review of the record, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 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 review. 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.

Chief Kyle J. Johnson SPR19/081 Page 5 January 25, 2019 The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive record, or redacted portions of the responsive record. 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 Town is ordered to provide this office with an un-redacted copy of the Presentment Letter withheld, in its entirety, under Exemption (c) without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Howard M. Cooper, Esq., Todd & Weld, LLP