Lori Galvin v. Massachusetts State Police (SPR 20192362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2019 SPR19/2362 Siobhan E. Kelly, Esq. Staff Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Kelly: I have received the petition of Lori Galvin appealing the response of the Department of State Police (Department) to her request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Galvin requested records related to the death of an identified individual. Prior Appeal The requested records were the subject of a previous appeal. See SPR 19/2117 Determination of the Supervisor of Records (October 30, 2019). In my October 30111 determination, I ordered the Department to provide a response to Ms. Galvin. The Department provided this response on November 20, 2019, withholding responsive records. Unsatisfied with this response, Ms. Galvin petitioned this office and this appeal, SPR 19/2362, was opened as a result. Tl,e 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); 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 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

Siobhan E. Kelly, Esq. SPR19/2362 Page 2 December 9, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its November 20111 and 22nd responses, the Department states that it is withholding responsive records pursuant to the privacy clause of Exemption ( c ). In her appeal petition, Ms. Galvin requests "the release of the report with the medical information redacted from the report." 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). 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 agai11st 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

Siobhan E. Kelly, Esq. SPR19/2362 Page 3 De.cember 9, 2019 · 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 November 22nd response, the Department states that "the information Ms. Galvin seeks implicates a matter of an intimate detail of a highly personal and private nature ... the circumstances surrounding the repoti relate to a suicide." The Department further asserts that "the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive personal matters." Based on the Depa1iment's responses, it appears that there may be some information contained in the report that constitutes "intimate details of a highly personal nature." However, the Depaiiment has not met its burden of demonstrating how responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record fa subject to mandatory disclosure. See G. L. c. 66, § lO(a) Conclusion Accordingly, the Department is ordered to provide Ms. Galvin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its · Regulations 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, ~~ Supervisor of Records cc: Lori Galvin