Stephanie Deeley v. East Bridgewater Police Department (SPR 20191031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2019 SPR19/1031 Sgt. William Patterson Town of East Bridgewater-Police Department 15 3 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. This request was the subject of previous appeals. See SPRl 9/0651 Determination of the Supervisor of Records (April 10, 2019); SPR19/0840 Determination of the Supervisor of Records (May 9, 2019). In my May 9th determination, I found that the Department had not met its burden in claiming Exemption (c); specifically, it was uncertain which redacted portions of the record the Department is claiming constitute medical information. Accordingly, I ordered the Department to review the records, redact where necessary, and provide Ms. Deeley with responsive records, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. Subsequently, the Department provided another response dated May 23, 2019. Unsatisfied with the Department's response, Ms. Deeley petitioned this office and this appeal, SPRl 9/1031, 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, § 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

Sgt. William Patterson SPR19/1031 Page2 June 10, 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. Current appeal In its May 24th response, the Department includes a less redacted version of the responsive records and indicates that" ... portions of the attached requested records which involve medical information as well as data related to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy have been redacted pursuant to G.L. c.4, §7(26) (c)." The Department indicates that" ... the redacted portions under the 'Narrative' section on the call number report contain medical information relating to a specifically named individual. In addition, where specifically referenced on the reports, social security number(s), date of birth and phone numbers have been redacted. As well, the additional three redacted entries without specific reference on the call number report are phone numbers." 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 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 Med. 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 id. at 134. In order to facilitate a determination as to the applicability of the Exemption ( c) claim made by the Department to withhold these portions of the records, the Department must provide this office with umedacted copies of the responsive records for an in camera inspection without

Sgt. William Patterson SPR19/103 l Page 3 June 10, 2019 delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records 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. Records 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. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records 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. The Department may provide this office with a further explanation of its position regarding the applicability of Exemption (c) to the responsive records. 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. Order Accordingly, the Department is ordered to provide this office with unredacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephanie Deeley