Julia Rock v. Fall River Police Department (SPR 20200085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2020 SPR20/0085 Cynthia Page Records Access Officer Fall River Police Department 333 Washington Street 1st Floor, Room 104 Brookline, MA 02445 Dear Ms. Page: I have received the petition of Julia Rock appealing the response of the Fall River Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Rock requested information regarding 911 calls made from an identified address. The Department responded to Ms. Rock on January 14, 2020, providing a log of 911 calls and indicating that it was withholding further responsive records pursuant to Exemption (c ) of the Public Records Law. Unsatisfied with this response, Ms. Rock petitioned this office and this appeal, SPR 20/0085, 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, § 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 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

Cynthia Page SPR20/0085 Page 2 January 24, 2020 Current Appeal In a January 14th email, the Department states that it is withholding responsive records pursuant to Exemption (c) of the Public Records Law. 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 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 resul.t 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).

Cynthia Page SPR20/0085 Page 3 January 24, 2020 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). The Department's Responses In a January 14th email exchange with the requestor, the Department indicates that it possesses call recordings that may be responsive to the request, but is withholding them pursuant to Exemption (c). The Department also informs the requestor that it "do[es] not have access to any of the medical calls." In a January 16th email to this office, the Department repeats this, stating that it "do[es] not have access to any Medical Calls in our system." Based on the Department's responses, it is unclear whether the Department possesses responsive records. During a conversation with a staff member of the Public Records Division, the Department indicated that there may be a misunderstanding regarding the meanings of "medical call" and "911 call" in reference to the Department's records. The Depaiiment must clarify this matter and indicate what responsive records it possesses and which, if any, it intends to withhold. See G. L. c. 66, § lO(b )(ii). If the Department is aware that that a different agency or municipality is in possession, custody or control of responsive records, it should identify such agency or municipality. G. L. c. 66, §lO(b)(iii). Conclusion Accordingly, the Depaiiment is ordered to provide Ms. Rock 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, ~ r r ~ Supervisor of Records cc: Julia Rock