Theodore N. Moser v. Greenfield, City of - Police Department (SPR 20192415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 17, 2019 SPR19/2415

Gillian Halkett

Records Access Officer

Town of Greenfield Police Department 321 High Street

Greenfield, MA 01301

Dear Ms. Halkett:

I have received the petition of Theodore Moser appealing the response of the Town of Greenfield Police Department (Department) to a request for public records. G, L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Moser requested: “[a]ll records relating to 911 response to [an identified address] on the evening of 8/21/19 and any subsequent and related investigation by the [Department].”

Prior appeals and determinations

The redacted records were the subject of prior appeals. See SPR19/1955 and SPR19/2048 Determinations of the Supervisor of Records (Supervisor) (October 4, 2019 and October 22, 2019), In my October 4" determination, I found that the Department did not meet its burden of specificity in claiming Exemption (a) to withhold responsive records in its possession by not claiming the federal or state law that operates through Exemption (a). I ordered the Department to provide Mr. Moser with a response and identify the records in its possession that are responsive to Mr. Moser’s request.

In an October 7" response, the Department claimed that G. L. c. 66, § 10B, as it operates through Exemption (a), and both clauses of Exemption (c) allow the Department to withhold both the 911 call and the incident report from public disclosure. As a result of the October 7" response, Mr. Moser petitioned the Supervisor, and this office opened appeal SPR19/2048, In my October 22™ determination, I found that in order to facilitate a determination as to the public nature of the requested records, or portions of the records, as well as the applicability of the Department’s exemption claims, I ordered the Department to provide this office with an un- redacted copy of the records for in camera inspection. On October 24", the Department provided this office with an un-redacted copy of the records for in camera inspection.

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

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After an in camera inspection of the responsive five (5) page incident report, including the narratives for Department Officers Corey M. Greene and Christopher J. Rowell, I found that the Department had met its burden in withholding portions of the records under Exemptions (a), (c) and (f) of the Public Records Law. Accordingly, I ordered the Department to review the record, redact where necessary, and provide Mr. Moser with.a copy of the redacted record.

The Department provided Mr. Moser with a copy of the incident report, redacted under 'G. L, c. 66, § 10B, as it operates through Exemption (a), both clauses of Exemption (c) and Exemption (f). As a result, Mr. Moser petitioned the Supervisor, and the current appeal was opened. In his December 3" petition, Mr. Moser states, “[t]he records that were released have been completely, excessively redacted beyond what is necessary to protect my privacy to the point where there is no information made available whatsoever. This does not meet the public need for information.”

Mr. Moser requests that the Supervisor provide the Department with instructions to only redact the involved party’s name and address, and that the Department Officer’s narrative should only have the name and address redacted. Mr. Moser also indicates that after consulting with a private attorney, Mr. Moser has reason to believe that the Department did not handle the incident

properly. Status of the requestor; reason for the request

Mr. Moser is advised that his personal interest in the responsive records does not afford him any greater right of access to the requested records or information under the Public Records Law. The Public Records Law does not distinguish between requestors. Access to a record or information requested pursuant to the Public Records Law rests on the content of the record itself and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Moser’s status will play no role in a determination as to whether the record should be disclosed to the public in its entirety or in a redacted format. Whereas, Mr. Moser has consulted with a private attorney pertaining to the records and the underlying incident, Mr. Moser may wish to seek another means of obtaining the records than through the Public Records Law.

In addition, in his November petition, Mr. Moser raises an issue pertaining to way the Department handled the incident. Consequently, Mr, Moser is advised that any issues he has regarding the Department’s handling of the underlying incident is beyond the authority of the Supervisor and the tenets of the Public Records Law.

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.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical

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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, § 10(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...”); 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).

The Department’s November provision of the redacted incident report

After this office’s in camera inspection of the responsive incident report, the Department provided Mr. Moser with the incident report, redacted under G. L. c. 66, § 10B as it operates through Exemption (a), Exemption (c) and Exemption (f). As a result of Mr. Moser’s appeal of the redactions, the purpose of this determination is to rule on whether the Department properly redacted the report under the exemptions claimed,

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that are:

specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a).

A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities,

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G. L. c. 66, § 10B

In its October 7" response, the Department cites G. L. c. 66, § 10B, as it operates through Exemption (a), to withhold the records, stating, “[a]s it relates to firearms, this report would divulge (without redacting in its entirety) the name and address of persons who were at the time -authorized to possess firearms...as well as detailed information regarding firearms stored at the residence or otherwise potentially in the possession of certain individuals.”

Section 10B in pertinent part states:

The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefor, as defined in said section 121 of said chapter 140, and names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request...

G. L. c. 66, § 10B.

A review by this office of the responsive record reveals that the August 2019 incident report contains the name and address of an individual licensed to possess firearms. A review by. - this office’ of the un-redacted and redacted versions of the record reveals that the Department redacted the name and address of the licensee. Mr. Moser’s request identified the specific address; therefore, the Department is unable to provide a less redacted record pertaining to any firearms at this specific address. Whereas, G. L. c. 66, §10B restricts public disclosure of these records and type of information, I find the Department has met its burden in withholding such information from disclosure under Exemption (a).

Exemption (c)

In its prior responses, the Department also claims, “[a]s it relates to privacy/medical information, these documents, again without redacting in its entirety, would specifically identify, or through common sense make identification easily accessible, those individuals involved in contacting the [D]epartment seeking medical help for an [individual], the individuall[s] themselves if they are different from the calling party, as well as other individuals (not law enforcement) who were involved.”

Exemption (c) applies to:

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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).

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).

First clause of (c) — medical

Under the first clause 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 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. y. Chief Medical Examiner, 404 Mass. 132, 135 (1987).

During the review of the responsive un-redacted and redacted versions of the incident report, narrative statements drafted by Department Officers, and a medical statement, this office finds that the records held by the Department do contain medical information, in particular diagnostic medical information of a highly personal nature that pertains to an identified person. Whereas, medical information pertaining to a specifically named or identified individual is contained throughout the records, I find that the Department has met its burden to withhold the ~ medical hospitalization statement and the redacted portions of both the incident report and the narratives of the Department Officers as medical information that is restricted from disclosure under Exemption (c).

Second clause of (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

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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. .

Based on the review of the records, the Department’s claim of the privacy clause of Exemption (c) is justified to withhold content within the narratives and other portions of the incident report. I also find that the Department cannot disclose a less redacted version of the report, where Mr. Moser is familiar with the subjects of the underlying incident.

Exemption (f)

The Department also stressed in its October 7" response, and in conversation with this

' office, that disclosure of the records would specifically identify, or through common sense make identification of any individual(s) who may have been a complainant, a person seeking medical

_ help or a witness, Based on the Department’s response and based on the in camera inspection of the un-redacted records and the redacted records, a discussion of Exemption (f) is warranted.

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 material 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)(£).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an on-going investigation may be withheld if disclosure could alert 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, 371 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.

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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 (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62, Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979), Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438.

In his petition, Mr. Moser contends, “[s]ince there is no crime involved, there is no concern for the protection of a prosecution’s case/investigation. In fact, there is no investigation involved in this whatsoever... Therefore, it is imperative that these records be released in with enough detail to determine to what extent legal protocols were not properly followed in the action against [an identified person] in this non-criminal matter.”

Mr. Moser posits that since there is no crime or investigation, the Department should not redact information under Exemption (f). However, Exemption (f) allows for the withholding of — identifying information pertaining to an individual who is a victim, complainant or voluntary witness. The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Globe Newspaper Co., 388 Mass. at 438. .

Based on Mr. Moser’s request, and familiarity with the incident, I find the Department may withhold any identifying information that may directly or indirectly identify the victim, complainant and/or witnesses contained in the responsive records under Exemption (f).

Conclusion

Accordingly, based on this office’s review of the Department’s responses, in camera inspection of the un-redacted records, and inspection of the redacted records received by Mr. Moser, I find that the Department has met its burden in responding to this request for records. I

now consider this administrative appeal closed.

If Mr. Moser is not satisfied with the resolution of this administrative appeal, please be

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advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies), .

Deron

tabbecca S. Murray Supervisor of Records

ce! Theodore N. Moser