Harvey Rosen v. East Longmeadow, Town of - Police Department (SPR 20191905)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division · Rebecca S. Murray Supervisor of Records September 27, 2019 SPR19/1905 Lori Hall Records Clerk Town of East Longmeadow Police Department 160 Somers Road East Longmeadow, MA 01028 Dear Ms. Hall: I have received the petition of Harvey Rosen of The Kreller Companies appealing the response of the Town of East Longmeadow Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rosen requested: the police reports regarding the shooting in May; the disappearance in June; and a death on or about September 3, 4, 5 pe1iaining to an identified person. The Department provided a response on September 11, 2019 informing Mr. Rosen that it has no records pe1iaining to a shooting in May and the disappearance in June of an identified person, because nothing of that nature occurred in East Longmeadow. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In its September 11th response, the Department denied Mr. Rosen's request for the repo1i of the death of the identified person under Exemption ( c) due to significant medical information. As a result, Mr. Rosen petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Mr. Rosen asks that the Department reconsider its denial, and provide him with a copy of the report with the medical information redacted from the report. 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 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

Lori Hall SPR19/1905 Page 2 September 27, 2019 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) ( written response must "identify any records, categories of records or portions 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 ... "); 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). Exemption (c) The Department indicated that it is withholding the report, in its entirety, under the first clause of Exemption (c) due to significant medical information within the content of the report. Exemption (c) applies to: 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 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 Westpmi, 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 Medical Examiner, 404 Mass. 132, 135 (1987). While the Department informed Mr. Rosen and this office that the.repmi contains medical information pertaining to the decedent who is the subject of the report, the Depaiiment has a duty to segregate exempt medical information. I find the Depaiiment has not met its burden in claiming the first clause of Exemption (c) to withhold the record in its entirety.

Lori Hall SPR19/1905 Page 3 September 27, 2019 · Burden ofs pecificity; duty to segregate The Department denied Mr. Rosen's request under Exemption (c) due to medical information contained in the report. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § IO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Depaiiment did not meet its burden of demonstrating how the responsive record, in its entirety, is exempt from disclosure. 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). The Depaiiment must produce any non-exempt, segregable portions of the public record. G. L. c. 66, § 1O (a). It is my understanding that a Senior Attorney in the Public Records Division discussed this appeal with you. Order Accordingly, the Department is ordered to review, redact where necessary, and provide Mr. Rosen with the record, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response that accompanies the record 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, ~ u r ~ Supervisor of Records cc: Harvey Rosen