Dennis J. Driscoll v. Essex County Sheriff's Department (SPR 20191336)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor ofR ecords July 18, 2019 SPR19/1336 Scott B. Sullivan, Esq. Essex County Sheriffs Depatiment P. 0. Box 807 Middleton, MA 01949 Dear Attorney Sullivan: I have received the petition of Dennis Driscoll appealing the response of the Essex County Sheriffs Depaiiment (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 21, 2019, Mr. Driscoll requested all 911 calls and transcripts with respect to an incident on June 18, 2019 at 5p.m. in Andover. The Depatiment responded on July 1, 2019, denying access to responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Depatiment's response, Mr. Driscoll petitioned this office and this appeal, SPRl 9/1336, 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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Scott B. Sullivan, Esq. SPR19/1336 Page 2 July 18, 2019 The Department's July 1st response In its July 1, 2019 response, the Department states that" ... given the nature of the incident in question, it is the Department's position that absent a Subpoena or Court Order, the materials sought are not public records and are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c) (privacy exemption) and (£)(investigatory exemption)." Citing the language of Exemptions (c) and (f), the Department asserts that it" ... does not disclose the identity and other personal information and statements of voluntary witnesses, private citizens who have come forward and provided information to law enforcement." The Department states that "[s ] ignificantly, the calls in question pertain to a very serious incident which was/is likely subject to inquiry and/or investigation. Disclosing the possible identity, contact information and other personal information of voluntary witnesses/private citizens not only encroaches upon their personal privacy, but could also potentially have a chilling [e ]ffect on their voluntarily coming forward and providing such information in future cases." The Department contends that ". . . the release of such statements could shed direct light onto and potentially identify the voluntary witnesses. As such the investigatory exemption allows the law enforcement agency to withhold from public disclosure information contained in a witness statement, indefinitely ...." The Department, however, directed Mr. Driscoll to contact the local and/or state police for a police repo1i if one is available. 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 ofE xemption (c) - 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 Westpo1i, 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 Medical Examiner, 404 Mass. 132, 135 (1987).

Scott B. Sullivan, Esq. SPR19/1336 Page 3 July 18, 2019 Second clause ofE xemption (c) - privacy 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, 477 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 (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)(±). 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

Scott B. Sullivan, Esq. SPR19/1336 Page 4 July 18, 2019 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. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or p01iions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the Department's response, it is unclear what records the Department possesses. The Department is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Depaiiment must identify any records, categories of records or portions of records it is withholding under Exemptions (c) and (f). With respect to the first clause of Exemption (c), it is unclear if the records contain medical information of an identifiable individual that may be permissibly withheld under Exemption (c ). With respect to the second clause of Exemption ( c ), the Depatiment has not provided information to establish how the withheld records constitute a type of personal information which would cause embarrassment to an individual of normal sensibilities if disclosed, would constitute an intimate detail of a highly personal nature, and is not available from other sources. See PETA, 477 Mass. 292. Additionally, the Depatiment did not provide any information regarding the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. With respect to Exemption (f), while the Department claims " ... the calls in question pertain to a very serious incident which was/is likely subject to inquiry and/or investigation[,]" it remains unclear if the responsive records pe1iain to an ongoing investigation or how the records are part of the investigation. Also, the Department did not demonstrate 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). Further, although the Department claims that disclosing the records" ... could shed light onto and potentially identify the voluntary witness" and" ... have a chilling [e]ffect on their voluntarily coming forward and providing such information in future cases[,]" it is unclear

Scott B. Sullivan, Esq. SPR19/1336 Page 5 July 18, 2019 why redaction is not possible to preserve witness anonymity. See Antell, 52 Mass. App. Ct. at 248. It is additionally unce1iain how disclosure of any segregable portion of the responsive records would create a grave risk of directly or indirectly identifying a voluntary witness. See Globe Newspaper Co., 388 Mass at 438. As a result, the Department has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 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). Conclusion Given that the Department did not meet its burden to explain how an exemption applies to withhold the records, in their entirety, the requested records may not be withheld. Accordingly the Depaiiment is ordered to review the responsive records, redact where necessary, and provide Mr. Driscoll 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. Sincerely, ~ r a ~ Supervisor of Records cc: Dennis Driscoll