Jason Ortiz v. Springfield, City of - Police Department (SPR 20200061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2020 SPR20/0061 Andrea L. Stone Public Records Coordinator City of Springfield Police Department 130 Pearl Street Springfield, MA 01105 Dear Ms. Stone: I have received the petition of Jason Ortiz of Pellegrini, Seeley, Ryan & Blakesley, P. C. appealing the response of the City of Springfield Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; also 950 C.M.R. 32.08(1 ). Specifically, Mr. Ortiz requested: "[Department] 911 Calls (call for service logs). 911 placed on 1/18/2018 on behalf of an [identified slip and fall victim] who refused medical assistance." On January 9, 2020, the Department provided Mr. Ortiz with the responsive call log, redacted under Exemption (c) of the Public Records Law. As a result of the redaction, Mr. Ortiz petitioned the Supervisor of Records, and this appeal was opened. In his petition, Mr. Ortiz objects to the redaction as it is the firm's belief that the information pertains to their identified client. Mr. 01iiz indicates that the firm can provide proof to the Department that it represents the identified person. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all gover11111ental 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) (w ritten 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Andrea L. Stone SPR20/0061 Page 2 January 23, 2020 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). Right of access; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Ortiz's purpose in making the request has no bearing on the public status of any existing responsive records or portions of the records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Comi has held that while a paiiy's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 CM.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Ortiz may wish to consider another means of seeking to obtain an un-redacted record. Exemption (c) The Department has indicated that the redacted pmiion of the call log it provided to Mr. 01iiz is exempt under Exemption ( c) of the Public Records Law. Exemption (c) applies to: 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

Andrea L. Stone SPR20/0061 Page 3 January 23, 2020 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). The Department has not established that medical information was redacted from the records. Therefore, the Department has not met its burden to withhold the information under the first clause of 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 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 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 Department's January 9th response, I find that the Department has not met its burden of specificity in withholding a p01iion of the responsive record under the privacy clause of Exemption (c). Burden of specificity in claiming exemptions The Department withheld certain of the information in the call log provided to Mr. Ortiz without supp01iing its Exemption (c) claim to withhold such information from the record. Under

Andrea L. Stone SPR20/0061 ·Page 4 January 23, 2020 the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Depa1iment did not meet its burden of demonstrating how the redacted information is exempt from disclosure under Exemption (c). 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). Conclusion Accordingly, the Department is ordered to provide Mr. Ortiz with a response to the request, 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: Mr. Jason Ortiz, Pellegrini, Seeley, Ryan & Blakesley, P. C.