Morton J. Shuman v. Natick, Town of - Police Department (SPR 20190877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 16, 2019 SPR19/877 Chief James G. Hicks Natick Police Department 20 East Central Street Natick, MA 01760 Dear Chief Hicks: I have received the petition of Morton J. Shuman, Esq. appealing the response of the Natick Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Shuman requested "any incident/investigative reports, police log (for 4/2/2017) and recordings of any 911 calls regarding [a specified] incident." The Department responded on April 2, 2019 by denying access to records under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Previous appeal This request was the subject of a previous appeal. See SPRl 9/0616 Determination of the Supervisor of Records (April 2, 2019). I closed SPR18/616 upon notification that the Department provided a written response to Attorney Shuman. Unsatisfied with the response, Attorney Shuman petitioned this office, and SPRl 9/977 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, § IOA(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, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. The Public Records Law states that "the 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 James G. Hicks SPR19/0877 Page 2 May 16, 2019 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. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record 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 Shuman's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Shuman may wish to consider another means of seeking to obtain any existing responsive records. 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 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).

Chief James G. Hicks SPR19/0877 Page 3 May 16, 2019 Regarding Exemption (c), the Department claims that "[a]s a general rule, medical information will always be of a sufficiently personal nature to warrant exemption. The initial report, as well as the supplemental reports talks throughout about the injuries that the involved parties suffered." Based on its response, I find the Department has not met it is burden to withhold the responsive reports, in their entirety, under Exemption (c). 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Regarding Exemption (f), the Department states that "[r]eport number 17-365-0F is still listed as Status: 'OPEN' which means it is still an ongoing investigation and satisfies the requirements for denial." In his appeal, Attorney Shuman indicates, in part, "[a]t a bare minimum, a redacted version of the Natick Police log that simply reflects that the Natick Police responded to an incident (armed masked robbery) at Monticello Inn could easily be furnished. Similarly, a recording of the 911 call that pertains only to the subject incident would not prejudice law enforcement efforts. Similarly, to the extent that there are any investigative reports that have

Chief James G. Hicks SPR19/0877 Page 4 May 16, 2019 been prepared by the Natick Police, the names of any potential suspects and/or their accomplices could be redacted." ( emphasis in original). While the Department claims the responsive records pertain to an ongoing investigation, it has not demonstrate how these records are part of an investigation, nor how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). As a result, the Department has not established how the withheld records, in their entirety, are exempt under Exemption (f). See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289- 90. Conclusion Accordingly, Department is ordered to provide Attorney Shuman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and it's Regulations within 10 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Morton J. Shuman, Esq.