Robert Steele v. Northampton, City of - Police Department (SPR 20201983)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2020 SPR20/1983 Jane Lawnicki Records Supervisor City of Northampton Police Department 29 Center Street Northampton, MA 02540 Dear Ms. Lawnicki: I have received the petition of Robert Steele appealing the response of the City of Northampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Steele requested “all documents/reports that the Northampton Police department, Fire Department, Ambulance department and any other city department, has in their possession” regarding a certain incident that occurred on March 17, 2019. The Department responded by providing several categories of responsive records, and withholding a copy of a recorded interview pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Steele petitioned this office and this appeal, SPR20/1983, 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). 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. 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

Jane Lawnicki SPR20/1983 Page 2 October 29, 2020 Current Appeal In its October 5, 2020 response, the Department indicates that it is withholding “a copy of the interview recording for case 19-593-OF” pursuant to Exemption (c) of the Public Records Law. Exemption (c) Exemption (c) 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 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 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 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).

Jane Lawnicki SPR20/1983 Page 3 October 29, 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). 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 its response, the Department states that “[i]n this case, the witness being interviewed discusses personal medical information.” While the Department’s response indicates that the recorded interview contains medical information that may be exempt from disclosure pursuant to Exemption (c), it is unclear whether this exemption permits withholding the record in its entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify whether it can produce segregable portions of the requested record. Modification Timestamps In his appeal petition, Mr. Steele states that he is “asking for [] the modified date stamps and corresponding information that was entered in Detective McKinney's personnel narrative, that spanned 16 months, from March 19, 2019 to July 14, 2020.” In a September 24, 2020 email, a member of the Department explained that “[t]he way our computer system is set up anytime we open up and type in our personnel narrative it is date stamped, indicating it is modified. It is not uncommon for a personnel narrative to have many modified dates, as we do not always finish a narrative documenting an investigation at one time.” In its October 5th response, the Department states that it is “unable to provide the reasons for the modifications” and explains that “[t]he software we use does not make note of the specifics of the modifications.” Based on Mr. Steele’s petition and the Department’s response, it is unclear whether the Department possesses additional information responsive to the request. Specifically, while the Department has indicated that it does not possess details regarding what material was modified, it is unclear whether it has produced all timestamps associated with the record. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § l0(a)(ii). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. See G. L. c. 66, § 10(b). The Department must clarify this matter.

Jane Lawnicki SPR20/1983 Page 4 October 29, 2020 Conclusion Accordingly, the Department is ordered to provide a response to Mr. Steele, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, Rebecca S. Murray Supervisor of Records cc: Robert Steele