Stephanie Deeley v. East Bridgewater Police Department (SPR 20190840)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supeniisor of Records May 9, 2019 SPR19/0840 Sgt. William Patterson Town of East Bridgewater - Police Department 153 Central Street East Bridgewater, MA 02333 Dear Sgt. Patterson: I have received the petition of Stephanie Deeley appealing the response of the Town of East Bridgewater - Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Deeley requested a "Police Report for response to a 9-1-1 call on the evening of 3/10/2013" to a certain address. Previous appeal This request was the subject of a previous appeal. See SPRl 9/0651 Determination of the Supervisor of Records (April 10, 2019). In my April 10th Determination, I found that the Department has not met its burden to explain how Exemption (f) applies to the requested records and ordered the Department to review the records, redact where necessary, and provide Ms. Deeley with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. Subsequently, the Department provided another response dated April 25, 2019. Unsatisfied with the Department's response, Ms. Deeley petitioned this office and this appeal, SPRl 9/0840, 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, § 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); 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

Sgt. William Patterson SPR19/0840 Page 2 May 9, 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's April 25, 2019 response In its April 25th response, the Department includes redacted responsive records and indicates that "portions of the requested records which involve medical information have been redacted pursuant to G.L. c.4, §7(26) (c). As well, personal identifying information such as dates of births, personal phone numbers and social security numbers have been redacted pursuant to G.L. c.214, §lB." 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, 432-33 (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). 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. Despite the Department's response, it is uncertain which redacted portions of the record the Department is claiming constitute medical information. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419

Sgt. William Patterson SPR19/0840 Page 3 May 9, 2019 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department is reminded that any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Accordingly, the Department has not met its burden in claiming Exemption (c). The Department also cites G. L. c. 214, § lB in support of its position. The Department is advised that G. L. c. 214, § lB does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding ofrecords responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587,595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection of requested materials). As such, the "personal identifying information such as dates of births, personal phone numbers and social security numbers" may not be withheld under this statute. 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. Deeley 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, Rebecca S. Murray Supervisor of Records cc: Stephanie Deeley