Greta Jochem v. Massachusetts Department of State Police (SPR 20202010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2010 Christine Dowling, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of Greta Jochem of the Daily Hampshire Gazette 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 August 28, 2020, Ms. Jochem requested “[a]ll documents, including police reports, the Massachusetts State Police have related to the September 1978 death of Seta Rampersad.” On October 1, 2020, the Department provided a response including responsive records in redacted form. The Department redacted the records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Department’s response, Ms. Jochem petitioned this office and this appeal, SPR20/2010, 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. If there are any fees associated with a response a written, good faith estimate must be 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

Christine Dowling, Esq. SPR20/2010 Page 2 November 2, 2020 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 October 1st response In its October 1, 2020 response, the Department indicates that it redacted records pursuant to Exemptions (c) and (f) 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 medical information that relates to an identifiable individual and is of a “personal nature.” Globe Newspaper Co., 388 Mass. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan, 401 Mass. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Id. 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).

Christine Dowling, Esq. SPR20/2010 Page 3 November 2, 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). 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. Under Exemption (c), the Department states that it “. . . redacted information about the circumstances of how the decedent was located, descriptions of the observations of the decedent, medical information, and descriptions of other personal details of the decedent pursuant to M.G.L. c. 7 (26)(c) (privacy exemption).” Citing the PETA decision, the Department explains 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, ‘[f]amily members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own’. See National Archives & Records Adm. v. Favish, 541 U.S. 157 (2004).” The Department further explains that given the type of information that the privacy exemption was designed to protect, “. . . it is reasonable to assert that records pertaining to how the decedent was located, the observations of the decedent, medical information, and the descriptions of other personal details of the decedent, which have nothing to do with the death investigation, 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 claims that it made redactions to personal identifying information of witnesses pursuant to Exemption (c) for the same reasons described above. Additionally, the Department asserts that “[f]or these same reasons, the Department has withheld production of the medical examiner’s report in this case. These reports are not public records subject to disclosure under M.G.L. c. 66, § 10. See LeBlanc v. Commonwealth, 457 Mass. 94 (2010) and Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132 (1989).”

Christine Dowling, Esq. SPR20/2010 Page 4 November 2, 2020 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 289-290. Under Exemption (f), the Department explains that “[t]he report is an investigatory material because it was created by law enforcement officials to document the nature and course of the unattended death investigation. The disclosure of a witnesses identifying information and information that could lead to their identity, would prejudice the possibility of effective law enforcement because releasing such information to the public would discourage citizens from coming forward and speaking freely with police officers in future investigations. See, Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). . . . Furthermore, the redactions are appropriate because they serve to preserve the anonymity of voluntary witnesses. See Reinstein v. Boston Police Comms, 378 Mass. 281, 291 n. 18 (1979). . . .” The Department asserts that “[t]he public has an interest in assessing the validity of an investigation involving unattended death. Redacting civilian witness identifying information and information that will lead to their identity, will serve the public interest of encouraging civilian witnesses from coming forward in future investigations. . . . Therefore, . . . the Department has redacted civilian witness identifying information that could potentially lead to their identity, pursuant to M.G.L. c. 4, §7, cl. 26 (f).” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact portions of the responsive records, 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

Christine Dowling, Esq. SPR20/2010 Page 5 November 2, 2020 Department’s custody and issue an opinion on the public or exempt nature of the records. 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 without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Greta Jochem