Kristen Noyes v. Cambridge, City of - Office of the City Clerk (SPR 20192062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 23, 2019 SPR19/2062 Seah Levy Records Access Officer Office of the City Clerk City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Kristen Noyes appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on September 23, 2019, Ms. Noyes requested an "unredacted police report regarding a crash that happened at 13:26 on 8/31/19 at Windsor St and Cambridge St in Cambridge." On October 7, 2019, the City responded providing responsive records in redacted form. The City provided an additional response on October 8, 2019. The City redacted records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the City's response, Ms. Noyes petitioned this office and this appeal, SPRl 9/2062, was opened as a result. Tlte 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, § IO(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. 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

Seah Levy SPR19/2062 Page 2 October 23, 2019 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. The City's October 1" and 8'" responses In its October 7, 2019 response, the City indicates that "[s]ome information has been redacted ... pursuant to Exemption (c) and Exemption (f) ... for the following reason: 1) [t]o protect the privacy of an individual and to protect medical information ... 2) [t]o protect the privacy of a voluntary witness .... " In its October 8, 2019 response, the City explains that "[d]etails redacted from this report were in the nature of confidential medical information regarding a victim in this incident, and the disclosure of such materials has been found to constitute an unwarranted invasion of personal privacy." The City further states that Exemption (f) applies, because the information identified a witness to the incident. The City explains that "Exemption (f) exempts information that might identify a voluntary citizen witness to a matter investigated by any investigative or law enforcement officials. The [City] seeks to protect citizen witnesses who make witness statements and to encourage all citizens to come forward and speak freely and candidly when reporting emergencies and police matters." The City contends that "[p]roducing all such records pursuant to public records requests would defeat the City's vital public safety interests, and would act as a deterrent to witnesses, and is not required based on Exemption (f), which allows such information to be withheld indefinitely." 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, 432-34 (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., 388 Mass. at 432-34. There is a strong

Seah Levy SPR19/2062 Page 3 October 23, 2019 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 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, 4 77 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. Subsequent to the opening of this appeal, I learned that on October 22, 2019, the City provided a supplemental response pe1iaining to this request. In light of the City's supplemental response, I will consider this appeal closed. Ms. Noyes may appeal the substantive nature of the City's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~.~ Supervisor of Records cc: Kristen Noyes