Jim Haddadin v. Braintree, Town of - Police Department (SPR 20192557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 15, 2020 SPR19/2557 Lt. Kevin L. Ware Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lt. Ware: I have received the petition of Jim Haddadin of NBC] 0 Boston appealing the response of the Braintree Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Haddadin requested "all Braintree Police Department records associated with an incident on Nov. 14, 2019 in which a man was found inside a freezer at Channel Fish Processing Company at 200 Commerce Drive in Braintree." This request was the subject of a previous determination. See SPRl 9/2507 Determination of the Supervisor of Records (January 2, 2020). In my January 211 d determination I noted that he Department initially responded on December 17, 2019 by indicating the Norfolk District Attorney's Office was the proper agency to respond to the request. The Department provided a supplemental response on December 30, 2019. Mr. Haddadin appealed the Department's 111 December 30 response and SPR19/2557 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 portion 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

Lt. Kevin L. Ware SPR19/2557 Page 2 January 15, 2020 Appeal In its December 30th response the Department denied access to responsive records under Exemption (c) of the Public Records Law. G. L. c. 4, §7 (26)(c). In a subsequent response dated December 30th the Department cites Exemption (f) and explains "[t]he Braintree Police Report is the only responsive document in the possession of the Braintree Police Department." It appears the Department is withholding the record in its entirety. 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 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 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). 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

Lt. Kevin L. Ware SPR19/2557 Page 3 January 15, 2020 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 ofhis 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. With respect to its Exemption (c) claim, the Department asserts "[t]he records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. Medical records are considered sufficiently private to warrant a denial." Based on the Department's responses, I find it is unclear how Exemption (c) applies to withhold the record in its entirety. Specifically, although medical information regarding an identified individual may be redacted, it is unclear how the entirety of the record constitutes medical information. Further, the Department has not established how disclosing the report would "constitute an unwarranted invasion of personal privacy" as contemplated by Exemption (c) and PETA. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § ,IO(a). Exemption (f) 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)(£). 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 alert suspects to the activities of investigative officials. Confidential

Lt. Kevin L. Ware SPR19/2557 Page4 January 15, 2020 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, 3 71 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, 378 Mass. at 290 n.18. 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 id. at 289-90. With respect to its Exemption (f) claim, the Department indicates "[i]n particular, it applies to information related to ongoing investigations, confidential investigative techniques and information which directly or indirectly identifies witnesses or informants. As a result such information must not be released." I find that to the extent that the record contains information that would identify voluntary witnesses or complainants, those portions of the responsive record may be withheld under Exemption (f). However, the Department has not established how the remaining portions of the record relate to confidential investigative techniques ot an ongoing investigation. Also, the Department did not sufficiently demonstrate how disclosing the record "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). The Department must clarify this matter. See G. L. c. 66, § lO(b)(iv) (a 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"). In camera inspection In the alternative, in order to facilitate my review, the Department may provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate"). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Lt. Kevin L. Ware SPR19/2557 Page 5 January 15, 2020 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with an explanation of its position regarding the applicability of Exemptions (c) and (f) to withhold the records in their entirety. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the Department is ordered to provide Mr. Haddadin with a response, 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. In the alternative, the Department may provide this office with un-redacted copy of the responsive record for an in camera inspection without delay. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jim Haddadin