Theodore N. Moser v. Greenfield, City of - Police Department (SPR 20192048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Reco')·ds October 22, 2019 SPR19/2048 Gillian Halkett Records Access Officer Town of Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Ms. Halkett: I have received the petition of Theodore Moser appealing the response of the Town of Greenfield 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. Moser requested: "[a]ll records relating to 911 response to [an identified address] on the evening of 8/21/19 and any subsequent and related investigation by the [Department]." Prior appeal In its initial response, the Department denied Mr. Moser's request under Exemption (a) of the Public Records Law without citing any federal or state law that operates through Exemption (a) to withhold the record(s). The responsive records were the subject of a prior appeal. See SPR19/1955 Determination of the Supervisor of Records (Supervisor) (October 4, 2019). In my October 4111 determination, I found that the Department did not meet its burden of specificity in claiming Exemption (a) to withhold responsive records in its possession by not claiming the federal or state law that operates through Exemption (a). I ordered the Department to provide Mr. Moser with a response to support its exemption claim, and identify the records in its possession that are responsive to Mr. Moser's request. The Department's October 7, 2019 response to my October 4, 2019 determination In its most recent response on October Jl11, the Depaiiment claims that G. L. c. 66, §lOB, as it operates through Exemption (a), and both clauses of Exemption (c) allow the Department to withhold both the 911 call and the incident report from disclosure. As a result of the Department's response, Mr. Moser petitioned the Supervisor and the current appeal was opened. · One Ashbution Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Gillian Halkett SPR19/2048 Page 2 October 22, 2019 Status of the requestor; reason for the request Mr. Moser should note that his personal interest in any responsive records in the possession of the Department does not afford him any greater right of access to the requested records or information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Moser's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety or in a redacted format. 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) (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 (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 govermnental 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 v. restricted. See Attorney Gen. 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

Gillian Halkett SPR19/2048 Page 3 October 22, 2019 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. G. L. c. 66, § JOB The Department cites G. L. c. 66, § lOB, as it operates through Exemption (a), to withhold the records, stating, "[a]s it relates to firearms, this report would divulge (without redacting in its entirety) the name and address of persons who were at the time authorized to possess firearms ... as well as detailed information regarding firearms stored at the residence or otherwise potentially in the possession of certain individuals." Section 1O B in pertinent part states: The commissioner of the department of criminal justice information services, the depaiiment 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) The Department also claims, "[a]s it relates to privacy/medical information, these documents, again without redacting in its entirety, would specifically identify, or through common sense make identification easily accessible, those individuals involved in contacting the [D]epartment seeking medical help for an [individual], the individual[s] themselves if they are different from the calling paiiy, as well as other individuals (not law enforcement) who were involved."

Gillian Halkett SPR19/2048 Page4 October 22, 2019 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). 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). Under the first clause medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westp01i, 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). Second clause of (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 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 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

Gillian Halkett SPR19/2048 Page 5 October 22, 2019 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. In camera inspection In order to facilitate a determination as to the public nature of the requested records, or portions of the records, as well as the applicability .of the Depa1iment's Exemption (a) and Exemption ( c) claims to withhold the records in their entirety, it is necessary to inspect an un redacted copy of the documents in question. See 950 C.M.R. 32.08(4). After I complete my review of the record(s), I will return the record(s) 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. See 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 ce1iainly affect our credibility within the legal community. Conclusion Accordingly, the Depaiiment is ordered to provide this.office with an un-redacted copy of the records for in camera inspection without delay. The Department may provide this office with a further explanation of its position regarding the applicability of Exemptions (a) and (c) to withhold the records from disclosure. Please be advised that; unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Gillian Halkett SPR19/2048 Page 6 October 22, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Theodore Moser