Nicole M. Avitabile, Esq. v. Lowell, City of - Police Department (SPR 20191894)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2019 SPR19/1894 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Dr. Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Attorney Nicole M. Avitabile appealing the response of the City of Lowell Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile originally requested "police rep01is involving motor vehicle accidents." The Department provided a response to Attorney Avitabile on September 12, 2019. Attorney Avitabile appealed the Depaiiment' s response to this office on September 16, 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, § 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 p01iion of the responsive record. G. L. c. 66, § lO(b)(iv). 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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre.pre@sec.state.ma.us

Ms. Jackie Cook, RAO SPR19/1894 Page 2 September 30,2019 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 Comi, 372 Mass. 539, 545-46 (1977). The Depaiiment claims it withheld responsive records under the Federal Driver Privacy Protection Act (DPP A). The DPP A includes ce1iain prohibitions on release and use of ce1iain personal information from State motor vehicle records: (a) ... A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in co1mection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725( 4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(l), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual's driver's license or affect the administration of organ donation initiatives in the States ... 18 U.S.C. § 2721(a). In the Department's September 12111 response they explain that "Exemption A, the Statutory Exemption G.L.c.4, S 7(26)(a), applies to motor vehicle crash reports because there is a federal statute which governs how motor vehicle accident reports are shared and it prohibits the disclosure of personal information contained in these reports to third paiiies. See Driver Privacy Protection Act, 18 U.S.C.2721 et seq." The Department concludes that "the Supreme Court of the United States held that the exceptions to the Driver Privacy Protection Act do not allow for the seeking or obtaining of motor vehicle accident reports for the solicitation of potential clients by law firms. Maracich v. Spears 133 S. Ct. 2191 (2013). As such, the statutory exemption applies to the records you requested."

Ms. Jackie Cook, RAO SPR19/1894 Page 3 September 30, 2019 It is unclear how the withheld records are exempt under Exemption (a); specifically, it is uncertain how all of these records contain information "specifically or by necessary implication exempted from disclosure" by the Depaiiment. Exemption (c) The Department redacted p01iions of responsive records under Exemption (c) of the Public Records Law. 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 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 will be of a sufficiently personal nature 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. Second clause 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 Prope1iy 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

Ms. Jackie Cook, RAO SPR19/1894 Page 4 September 30, 2019 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. The Depaiiment states in the September 12111 response that "exemption C, the privacy exemption, applies to the identifying information in the records sought because the records contain materials or data relating to specifically named individuals the disclosure of which may warrant an invasion of personal privacy." The Depaiiment' s response does not address how the redacted information constitutes personnel information, nor does it address the factors articulated in PETA . As a result, the Depaiiment has not established how the withheld information is exempt under Exemption ( c ). Conclusion Accordingly, the Department is ordered to review the request and provide a written response to Attorney Avitabile, made in accordance with the Public Records Law, its Access Regulations and this order 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: Nicole M. Avitabile, Esq.