James C. Erne v. Massachusetts State Police (SPR 20190475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 14, 2019 SPR19/0475 Michael B. Halpin, Esq. Massachusetts State Police 470 Worchester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of James C. Erne 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, Mr. Erne requested "copies of any and all releasable police rep01is, call logs, witness statements, suicide notes, phone records and/or investigation findings" related to an identified event. Previous appeal This request was the subject of a previous appeal. See SPRl 8/1611 Detem1ination of the Supervisor of Records (November 16, 2018). I closed SPR18/1611 by ordering the Department to review the records, redact were necessary, and provide Mr. Erne with responsive records, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided Mr. Erne with further responses dated November 30, 2019 and February 27, 2019. Unsatisfied with the Department's responses, Mr. Erne petitioned this office and this appeal, SPR19/0475, was opened as a result. 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 to'Vlrn 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 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

Michael B. Halpin, Esq. SPR19/0475 Page 2 March 14, 2019 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. Ifthere are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its November 30tli and February 2ih responses, the Department indicates it denied Mr. Eme's request claiming the responsive record is exempt from disclosure pursuant to the second clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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). Exemption (c ) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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).

Michael B. Halpin, Esq. SPR19/0475 Page 3 March 14, 2019 This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outvveighs 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. In its November 30th and February 2ih responses, the Depmiment indicates that it "takes the position that the information [Mr. Erne] seek[s] implicates a matter of an intimate detail of a highly personal and private nature." The Department explains that "[i]n this instance, Mr. Erne is requesting a report which details the suicide of [an identified individual] and the state in which [the identified individual] was located." The Depaiiment "asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive personal matters." The Department explains that "in conducting the balancing test described in G.L. c. 4, §7 cl. 26(c), the Department has determined that the privacy interest of [the identified individual] and [his or her] immediate family outweighs the requestors right to know the details of a tragic and personal matter like this" and "considerably outweighs the public's interest in disclosure." In Mr. Erne's petition for appeal, he indicates that "[o]n December 19, 2016, the Lexington Massachusetts Police Department ... provided [him] with copies of documents responsive to [his] public records request. This included the 'Police Officer's Formal Report' and the 'DailyLog"' and indicates that"[a ]nother public record, the 'Certificate ofD eath' was also released and provided to [him]." Based on the Department's responses, I find the Department has met its burden to show how it may withhold the responsive report under Exemption ( c ). Conclusion Accordingly, whereas the Department has met its burden to withhold the responsive report under the Public Records Law, I will now consider this administrative appeal closed. If Mr. Erne is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). rely, e ecca S. Murr~ Supervisor of Records cc: James C. Erne