Brian Keaney v. Dedham, Town of - Police Department (SPR 20200138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 7, 2020 SPR20/0138 Officer Ron Pucci Dedham Police Department 600 High Street Dedham, MA 02026 Dear Officer Pucci: I have received the petition of Brian Keaney appealing the response of the Dedham Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Keaney requested a report regarding an identified incident. Previous appeal This request was the subject of previous appeals. See SPRl 9/1667 Determination of the Supervisor of Records (November 29, 2019); SPR19/2310 Determination of the Supervisor of Records (December 23, 2019); SPR20/038 Determination of the Supervisor of Records (January ·2 3, 2020). In my January 23rd determination I ordered the Department to provide Mr. Keaney with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on January 23, 2020. Mr. Keaney appealed and SPR20/0138 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, § IO(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 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

Officer Ron Pucci SPR20/0138 Page 2 February 7, 2020 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. Current appeal In an October 23, 2019 response the Department asserted "[i]t was a medical emergency which cannot be released." In my December 23rd determination I found that upon in camera review of the record submitted, although portions of the record contain medical information, the Department had not established how the record may be withheld in its entirety under an exemption. Specifically, it was unclear why the Department could not provide the record in a de identified manner. Subsequent to this determination, the Department provided Mr. Keaney a redacted version of the responsive record. In my January 23rd determination I found the Department had not established how each redaction is supported by an exemption to the Public Records Law; in particular, it was unclear on which exemption(s) the Department was relying. I indicated the Department must provide a response that meets this criteria set forth in G. L. c. 66, § 1O (b )(iv). In the Department's January 23rd response you cite the medical clause of Exemption (c) in supp01i of the redactions. 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 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). While it is generally held

Officer Ron Pucci SPR20/0138 Page 3 February 7, 2020 that one's right to privacy is extinguished at death, an individual's privacy interest in his or her medical information survives death. See id. at 134-35. You assert, in paii, "[t]he call for service was a medical call, the reason for the heavy redaction was the fact it was primarily a medical situation with the party involved. Most of the information within the report related to the medical emergency. As I would for you and anyone else I would not be upholding public record law ifl release the complete report to you." In his appeal petition Mr. Keaney asserts "I appreciate the Dedham Police Department's efforts to protect the privacy of the person experiencing a medical emergency. However, I am willing to accept a copy of the report with just the person's name redacted. Officer Pucci has redacted far more than just that." He further notes "[a]dditionally, I believe that there is additional information in the report not covered by [E]xemption [c]. For example, there is a 'victim' listed on the report and a violation of a statute was listed and redacted. I don't believe these would be covered by [E]xemption [c]. I suspect that paii of the redacted narrative has to do with the violation of that statute and presumably would not be covered by [E]xemption [c] either." Although portions of the record that reveal medical information about an identifiable person may be withheld, I find the Department has not established how each redaction is supported by Exemption (c). In particular, it is unclear how po1iions of the record, for example, the information under the headings "Complaint Charges," and "Associated Person Summary," as well as certain portions of the narrative, constitute medical information about a specific person. Further, the Department has not established why it cannot provide additional portions of the record by redacting only identifying information of the patient. 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). The Depmiment must provide any non-exempt, segregable portion of a public record. G. L. c. 66, § lO(a). It should be noted that identifying information .is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual. See Globe Newspaper Co., 388 Mass. at 438. Conclusion Accordingly, the Department is ordered to provide Mr. Keaney 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.

Officer Ron Pucci SPR20/0I38 Page 4 February 7, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Keaney