Chris Infami v. Brookline, Town of - Town Clerk (SPR 20192331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2019 SPR19/2331 Patrick J. Ward Town Clerk Town of Brookline 333 Washington Street 1st Floor, Room 104 Brookline, MA 02445 Dear Mr. Ward: I have received the petition of C. Infami appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on June 12, 2019, C. Infami requested "all Computer Aided Dispatch Transcripts (CADs), Calls For Services Reports, all incident reports, all fire reports, all medical emergency reports, all 911 audio files/calls, all 911 documents, all documents, and all log book entries" pertaining to a certain address in the Town. The Town responded to C. Infami on November 8, 2109, providing a redacted recording of a 911 call. Unsatisfied with this response, C. Infami petitioned this office and this appeal, SPR 19/2331, 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, § 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, § 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 or redacted po1iion 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

Patrick J. Ward SPR19/233 l Page 2 December 2, 2019 Current Appeal In its response providing the redacted 911 recording, the Town states that it is making the redactions pursuant to Exemption (c) of the Public Records Law. In the appeal petition, C. Infami asserts that "[t]he 911 call was heavily overredacted. The . medical complication was redacted .... Of course all personal data should be redacted and the medical issue can be left in the copy of the 911 call .... " Exemption (c) Exemption ( c) of the Public Records Law 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, 432-33 (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 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 will be ofa 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). 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

Patrick J. Ward SPR19/233 l Page 3 December 2, 2019 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, 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 its response, the Town indicates that "these records are redacted to withhold 'intimate details of a highly personal nature' such as medical conditions .... " The Town further explains that it has redacted "other identifying information." Based on the Town's response, I find it has met its burden to withhold responsive records pursuant to the first clause of Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage point of those who are familiar with the individual). Conclusion Accordingly, I will consider this administrative appeal· closed. If C. Infami is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit avaHability of judicial remedies). Sincerely, ~r~ Supervisor of Records cc: C. Infami