Elizabeth A. Myers v. Massachusetts Department of State Police (SPR 20200875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 16, 2020 SPR20/0875 Keith A. Paquette, Esq. Legal Counsel Department of State Police 470 Worcester, MA Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Elizabeth Myers appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 24, 2019, Ms. Myers requested an identified police report concerning a death. Previous Appeal This request was the subject of previous appeals. See SPR20/0678 Determination of the Supervisor of Records (May 6, 2020). In my May 6th determination I found it was unclear what exemption the Department was claiming to withhold the requested records. The Department was ordered to provide Ms. Myers with a response in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided said response to Ms. Myers on May 22, 2020, indicating they made redactions to the records pursuant to Exemptions (c) and (f). Unsatisfied with the Department’s redactions under Exemption (c), Ms. Myers petitioned this office and this appeal, SPR20/0875, 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, § 10A(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). 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

Keith A. Paquette, Esq. SPR20/0875 Page 2 June 16, 2020 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); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In its May 22nd response, the Department made redactions to the records under the privacy clause of Exemption (c). In her appeal, Ms. Myers states “I am not asking for names, addresses or any personal information on the witnesses.” The Department made redactions under Exemption (c) to “the cause and manner of death.” The Department states “that disclosure of this information would result in personal embarrassment to the decedent and the family. The information contains intimate details of a highly personal nature as stated in Favish…[g]iven this type of information that the privacy exemption was designed to protect, it is reasonable to assert that personal information pertaining the cause and manner of a decedents death, that did not result in criminal charges, is the kind of information that the privacy exemption was designed to protect. The public’s interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner is considerably diminished in this matter as there is no evidence of criminal conduct in the death investigation. However, with the redactions, the report includes the investigator’s course of action which will provide the public with the ability to access whether the investigators were carrying out their duties in a law-abiding and efficient manner. As such, the Department asserts that the public interest in obtaining the redacted information does not substantially outweigh these stated privacy interest.” The Department also made redactions to “the circumstances of how the decedent was located, a description of the observation of the decedent, and a description pertaining to how the decedent passed away” for the same reasons as stated above under Exemption (c). Further, the Department made redactions to “medical information that was located on an item discovered in the home” as medical information under Exemption (c). The Department also states it “redacted the reason for the call in the narrative which includes information pertaining to the circumstances of how the decedent was located and the observation of the decedent” for the same reason under Exemtpion (c) as stated above. Exemption (c) Exemption (c) permits the withholding of:

Keith A. Paquette, Esq. SPR20/0875 Page 3 June 16, 2020 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). 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, 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. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to redact portions of the report, the Department must provide this office with an un-redacted copy the responsive records for an in camera review without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records 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.

Keith A. Paquette, Esq. SPR20/0875 Page 4 June 16, 2020 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. 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. Conclusion Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Myers