Nicole M. Avitabile, Esq. v. Everett, City of - Police Department (SPR 20192087)

William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 25, 2019 SPR19/2087

Sgt. Mark Zielinski

City of Everett- Police Department 45 Elm Street

Everett, MA 02149

Dear Set. Zielinski:

I have received the petition of Attorney Nicole M. Avitabile appealing the response of the City of Everett Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 9, 2019 Attorney Avitabile requested “all police reports involving motor vehicle accidents in your possession, custody, or control, from 8/26/2019 to present to be sent to me in electronic format.” (emphasis in original). The Department initially responded on September 12, 2019 by denying access to responsive records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c).

Previous appeal

This request was the subject of a previous appeal. See SPR19/1911 Determination of the Supervisor of Records (October 2, 2019), In my October "4 determination I ordered the Department to review the request and provide a written response to Attorney Avitabile, made in accordance with the Public Records Law and its Access Regulations.

The Department provided a response to Attorney Avitabile on October 8, 2019. Attorney Avitabile appealed and SPR19/2087 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, § 10A(d); 950 C.MLR. 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).

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

Sgt Mark Zielinski SPR19/2087 Page 2 October 25, 2019

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, § 10(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, G. L. c. 66, § 10(b)(iv).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. ¢. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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

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 ‘ndividual 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 Vv. 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.

Sgt Mark Zielinski SPR19/2087 Page 3 . October 25, 2019

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 ‘nformation 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.

In a September 12" response the Department asserted “[t]his request is being denied in accordance with Exemption C-personal privacy. Furthermore, the request lacks sufficient specificity and appears to be for a commercial purpose.” In my October 24 determination I found the Department’s response did not address how the redacted information constitutes private information, nor did it address the factors articulated in PETA. As a result, the Department had not established how the withheld information is exempt under Exemption (c).

In its October 8" response the Department indicates “[a]fter a review, with regards to search criteria that you requested, the Everett Police Department refers any all requests relative to copies of motor vehicle accident reports to an on line service: www.docview.us.com,” In her current appeal petition Attorney Avitabile asserts “, . . Tam not satisfied with the response to my request from the Everett Police Department. They did not comply with your previous order and they still have not supplied me with responsive records. Instead, they directed me to a third party website where I have to pay to get the records. I look forward to your response.”

With respect to the Department’s reference to the “on line service,” I find the Department must clarify whether it possesses responsive records, 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

In the event that the Department possesses responsive records, I find that despite its October 8"" response, the Department has not addressed how the redacted information constitutes private information, nor does it address the factors articulated in PETA. As a result, the Department has not established how the withheld information is exempt under Exemption (c). In addition, with respect to the Department’s reference to “commercial purpose,” the Department is

Set Mark Zielinski SPR19/2087 Page 4 October 25, 2019

encouraged to review the provisions of G. L. c. 66, § 10(d)(iv), (viii)-(ix) which discuss the impact of a request being submitted for a “commercial purpose.”

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. Mumma

Rebecca S. Murray Supervisor of Records ce: Nicole M. Avitabile, Esq.