Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20192199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 14, 2019 SPR19/2199 Mark G. Saloio Chief of Police Town of Tisbury - Police Department 32 Water Street P. 0. Box 426 Vineyard Haven, MA 02568 Dear Chief Saloio: I have received the petition of Rich Saltzberg of the Martha's Vineyard Times appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 7, 2019, and October 15, 2019, Mr. Saltzberg requested "[r]ecords pertaining to 'threat of violence against a school within the last six months' pertaining to [an identified individual]" and "any police reports involving Tisbury resident ... that were generated in the months of Sep. or Oct. 2019 ... and any letters, receipts or paperwork that accompany such reports[,]" respectively. The Department provided responses on October 11, 2019, and October 24, 2019, denying access to responsive records pursuant to Exemptions (c), (f), and (j) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f), (j). Unsatisfied with the Depaiiment's responses Mr. Saltzberg petitioned this office and this appeal, SPR19/2199, 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, § 1O A( 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 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

Chief Mark G. Saloio SPR19/2199 Page 2 November 14, 2019 or redacted portion of the responsive record. 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 Department's October 11'11 response to the October 7'11 request In response to the October 7111 request, the Depaiiment states that it possesses" ... certain records responsive to [the] request[,] [but] ... [t]he records ... contain information that is subject to withholding under the second clause of Exemption 'c"' as it contains confidential information. The Department states that the records " ... contain medical files or information, which may be withheld/redacted from the records pursuant to Exemption (c). The records contain information, which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details of a highly personal nature, and the privacy . interests outweigh the public interests in the disclosure of that information." The Depaiiment also states that if it " ... produced the records in redacted form, the redactions would be so significant as to render the document meaningless. As a result, the information requested will be completely withheld under Exemption (c)." · The Department's October 24'11 response to the October 15'11 request In its October 24, 2019 response, the Department indicates that it has identified records responsive to the request. The Department states that "[t]he records ... contain information that is subject to withholding under the second clause of Exemption c." The Department also states that the records " ... contain medical files or information, which may be withheld/redacted from the records pursuant to Exemption ( c ). The records contain information, which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details of a highly personal nature, and the privacy interests outweigh the public interests in the disclosure of that information." The Department also states that if it " ... produced the records in redacted form, the redactions would be so significant as to tender the document meaningless. As a result, the information requested will be completely withheld under Exemption (c)." The Depaiiment further states that" ... Exemption (f), the investigatory exemption, provides custodians a basis for withholding investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Any and all statements compiled by the [Depaiiment] which are responsive to [Mr. Saltzberg's] request are subject to withholding under Exemption (f)." The Department also asserts that the records can be withheld under Exemption U). Citing the language of Exemption U), the Department states that "[t]he purpose of Exemption (j) is to

Chief Mark G. Saloio SPR19/2199 Page 3 November 14, 2019 prevent individuals with devious motives from ascertaining the identities of those who possess firearms. Responsive documents that fall within Exemption U) shall be withheld, as well." 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 claiise 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, c1;eates 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 is sufficiently personal 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 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.

Chief Mark G. Saloio SPR19/2199 Page 4 November 14, 2019 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. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(:f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could ale1i suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 37 1 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Exemption (j) Exemption (j) of the Public Records Law permits a records custodian to withhold or redact p01iions of records containing: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefore, as defined in said chapter one hundred and fo1iy and the names and addresses on said licenses or cards.

Chief Mark G. Saloio SPR19/2199 Page 5 November 14, 2019 G. L. c. 4, § 7(26)G) (emphasis added). The scope of the exemption is limited to restricting the public disclosure of the name and address of the individual. Burden of specificity in claiming exemptions; duty to segregate Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. Although the Department indicates that "there are certain records responsive to [the] request[,]" the Department did not identify the records in its possession that are responsive to the requests. Please note that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify what type ofrecord(s) it has in its possession that is responsive to Mr. Saltzberg's requests. With respect to the first clause of Exemption ( c ), to the extent that the requested records contain medical information of an identifiable individual, I find the Department may permissibly withhold such p01iions from disclosure. With respect to the second clause of Exemption ( c ), although the Department claims that the" ... information contains intimate details of a highly personal nature, and the privacy interests outweigh the public interests in the disclosure of that information[,]" I find the Department has not met its burden to withhold records under the second clause of Exemption ( c) . Considering the PETA analysis, the Department has not demonstrated how disclosure of the information would result in personal embarrassment to an individual of normal sensibilities or indicated whether the same information is available from other sources. PETA, 4 77 Mass. at 292. As a result, the Department has not established whether there is a privacy interest that is not substantially outweighed by a public interest. See id. at 291-92. With respect to Exemption (f), while the Department claims in its October 24th response that the investigatory exemption applies to these records, the Department did not explain how the requested records are part of an ongoing investigation. Nor does the Department explain whether disclosure of the records or "statements compiled by the Department" will reveal any particular investigative techniques that are unique to the Department or how disclosure of any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f).

Chief Mark G. Saloio SPR19/2199 Page 6 November 14,2019 With respect to Exemption (j), the Department claims in its October 24th response that "[r]esponsive documents that fall within exemption (j) shall be withheld[.]" However, it is unclear how portions that fall within this exemption, specifically, the names and addresses of such persons, cannot be segregated from the responsive records to preserve their anonymity and the non-exempt portions provided. Also, despite the Depaiiment's claim that "the redactions would be so significant as to render the document meaningless[,]" please be reminded that under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Rich Saltzberg