Arthur G. Grenier v. Lowell, City of - Police Department (SPR 20190963)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 29, 2019 SPR19/0963 Daniel R. Larocque Deputy Superintendent of Police City of Lowell - Police Department 50 Arcand Drive Lowell, MA 01852 Dear Mr. Larocque: I have received the petition of Arthur Grenier appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on April 30, 2019 Mr. Grenier requested: 1. All audits of evidence that have been conducted between January 1, 2018 and the present; if no audits occurred during this period, then please provide the most recent audit that was conducted prior to 2018. 2. RE: General Order 0107 (Handling, Security & Preservation of Evidence) --Seeking responsive documents regarding any discrepancies discovered in the collection, handling, transfer or possession of evidence or possessed property, or during the course of an inspection or inventory. --Policy states that this shall be immediately reported to the Commanding Officer, with a copy to the Superintendent of Police. (Calendar year 2018 and 2019 to the present) 3. More specifically, Any police department report and/or documents re: investigations about missing cellular telephones that were turned in as either property and/or evidence to the Lowell Police Department. On May 13, 2019, the Department responded to his request by providing "a list of audits of the Evidence Section" and indicating "firearms serial numbers have been redacted" pursuant to G. L. c. 66, § lOB and Exemptions (a), (c), and G) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), G). 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

Daniel R. Larocque SPR19/0963 Page 2 May 29, 2019 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); 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). 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, § 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. 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.

Daniel R. Larocque SPR19/0963 Page 3 May 29, 2019 The statute provides in relevant part: The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. G. L. c. 66, § lOB. 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 creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing core categories of personnel information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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).

Daniel R. Larocque SPR19/0963 Page4 May 29, 2019 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. 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, 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. Exemption (j) Exemption G) of the Public Records Law permits a records custodian to withhold or redact portions of records containing: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards G. L. c. 4, § 7(26)(i) (emphasis added).

Daniel R. Larocque SPR19/0963 Page 5 May 29, 2019 The purpose of Exemption G) is to prevent individuals with devious motives from ascertaining the identities of those who possess firearms. The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. See id.; see also G. L. c. 140, §§ 121-13 lP. Specificity Under the Public Records Law, the burden is on 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's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemptions (a), (c) and G) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any furtherinformation with respect to the requested records. With respect to Exemption (a) and G. L. c. 66, § lOB, based on the Department's response, it is uncertain how this statute specifically or by necessary implication exempts the firearm serial numbers from disclosure. See G. L. c. 4, § 7(26)(a). Further it is uncertain how disclosure of the redacted serial numbers would "divulge the names or addresses of persons who own or possess firearms ... " See G. L. c. 66, § lOB. With respect to Exemption (c), based on the Department's response, it is uncertain which clause of Exemption ( c) the Department is claiming and how that clause applies to withheld the portions. See G. L. c. 4, § 7(26)(c). With respect to Exemption G), whereas this exemption is limited to the withholding of names and addresses, it is unclear how the Department is permitted to withhold the firearm serial numbers under this exemption. See G. L. c. 4, § 7(26)G). As a result, I find that the Department has not satisfied its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Order Accordingly, the Department is ordered to provide Mr. Grenier with a response to the request, 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.

Daniel R. Larocque SPR19/0963 Page 6 May 29, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur Grenier