Debbie Spingarn v. Walpole, Town of - Police Department (SPR 20200960)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2020 SPR20/0960 John F. Carmichael, Jr. Chief of Police Walpole Police Department 50 South Street Walpole, MA 02081 Dear Chief Carmichael: I have received the petition of Debbie Spingarn appealing the response of the Walpole Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 2, 2020, Ms. Spingarn requested a copy of a police report “[s]ubmitted at: Mon March 2 13:52:11 2020 from: 69.147.162.232.” Previous appeal The requested record was the subject of a previous appeal. See SPR20/0529 Determination of the Supervisor of Records (March 25, 2020). In my March 25th determination, I found that the Department had not met its burden to withhold responsive records under Exemptions (a) and (f) of the Public Records Law. Accordingly, I ordered the Department to provide Ms. Spingarn with a response, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided a response on April 10, 2020, which provides additional information regarding its exemption claims. Purpose of request; identity of requestor 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, Ms. Spingarn’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Chief John F. Carmichael SPR20/0960 Page 2 June 30, 2020 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). 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. The Department’s April 10th response In its April 10, 2020 response, the Department asserts that the requested record is exempt from disclosure under Exemptions (a), (c), and (f) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute

Chief John F. Carmichael SPR20/0960 Page 3 June 30, 2020 by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute, G. L. c. 41, § 97D, provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 . . . G. L. c. 41, § 97D. Under Exemption (a), the Department claims that “. . . the Department, without the requisite statutory authorization, cannot provide records protected under state law, G.L. c. 41, §97D. Massachusetts G.L. c. 41, §97D excludes from public records certain types of information, and requires such information to be maintained in a confidential manner by police departments. In accordance with G.L. c. 41, §97D, records constituting communications between police officers and victims of such offenses are not public records, and accordingly, the provisions of G.L. c. 66, §10 relative to public records requests do not apply here and/or the records may be withheld pursuant to exemption (a) of the Public Records Law.” The Department notes that it “. . . may only provide copies of records that fall within the restrictions set forth in G.L. c. 41, §97D to the victim or victim’s attorney, or other person authorized by statute. To date, the [Department] has not been provided with the requisite authorization. . . .” Exemption (c) Exemption (c) permits the withholding of: Personnel and medical files or information; also any other materials or data

Chief John F. Carmichael SPR20/0960 Page 4 June 30, 2020 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 of Exemption (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 is sufficiently personal 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 Medical Examiner, 404 Mass. 132, 135 (1987). Second clause of Exemption (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, 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.

Chief John F. Carmichael SPR20/0960 Page 5 June 30, 2020 Under Exemption (c), the Department states that the reports “. . . which contain ongoing investigatory materials responsive to the request regarding the specific incident at question regarding specifically identified individuals include highly sensitive information, including medical information, regarding specifically named individuals, which are exempt pursuant the first and second clauses of exemption (c).” Citing case law, including PETA, the Department asserts that these records “. . . contain[] allegations of an alleged sexual assault regarding specifically named individuals, which are appropriately withheld under exemption (c). Specifically, the police investigatory materials regarding this matter and contain highly sensitive information relating to allegations regarding specific individuals, as well as medical information relative to same.” 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)(f). 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 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, 371 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 v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). 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 Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department asserts that “. . . the records are exempt from disclosure at this time . . . since they relate directly to an ongoing criminal investigation in consultation with the District Attorney’s Office and the premature disclosure of the records may, based on the careful review by the Police Chief, impact said ongoing investigation. . . . One purpose of this exemption is to avoid premature disclosure of investigatory information prior to trial or other process for resolving the matters being investigated, and the prevention of disclosure of confidential investigative techniques, procedures or sources of information. WBZ- TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 601 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). As such, the records may also be withheld at this time under exemption (f) as the criminal investigation remains ongoing.”

Chief John F. Carmichael SPR20/0960 Page 6 June 30, 2020 In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold responsive records from disclosure, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s 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. Mass. 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Debbie Spingarn