Patrick J. Mason v. Cambridge, City of - Office of the City Solicitor (SPR 20202063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2063 Seah Levy Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Patrick J. Mason of The Mason Group, Inc., on behalf of Marc Breakstone, Esq. and the law firm, Breakstone, White & Gluck, P.C., appealing the response of City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 23, 2020, Mr. Mason requested a complete copy of the police reports along with photographs; videos; recordings and/or transcripts of 911 calls, and witness statements in connection with a pedestrian fatality involving the estate of an identified decedent. On October 19, 2020, the City provided Mr. Mason with redacted records under Exemptions (c) and (f) of the Public Records Law, and withheld in their entirety eight (8) 911 calls under Exemptions (c) and (f). The City also indicates that whereas Mr. Mason provided an Authorization to use or Disclose Protected Health Information, the City did not redact information pertaining to the decedent. As a result of the City’s response, Mr. Mason petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Mason asserts, “…the Middlesex District Attorney’s Office [DAO] has conclusively decided not to charge the driver…Therefore, there is no on-going investigation and no charges pending I suggest the withholding of both the eight 911 calls and identification of all witness[es] does not fall within the exemption [c]ited.” Unique Right of Access Mr. Mason is advised 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. 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

Seah Levy SPR20/2063 Page 2 November 9, 2020 Access to a record requested 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, Mr. Mason’s purpose in making the request has no bearing on the public status of any existing responsive records. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.") 950 C.M.R. 32.08(1)(a). As such, Mr. Mason and his clients may wish to consider another means of seeking to obtain any existing responsive records, or un-redacted records. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The City’s November 5, 2020 response After this appeal was opened, the City provided a response to address Mr. Mason’s petition which indicates that he seeks the identification of the witnesses and the eight 911 call recordings. The City asserts in this November 5th response that it is withholding the eight 911 call recordings in their entirety under Exemptions (c) and (f). 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

Seah Levy SPR20/2063 Page 3 November 9, 2020 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). While it is generally held 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. Second clause of (c) - privacy 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).

Seah Levy SPR20/2063 Page 4 November 9, 2020 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. The City’s October 19th and November 5th responses claim the privacy clause of Exemption (c) to withhold the 911 recordings. In its November 5th response, the City states, “…privacy concerns of the civilian witnesses who called 911 to report observations of the motor vehicle crash which resulted in the death of [the identified person] and the public interest in disclosure, the privacy concerns of these civilian witnesses significantly outweigh the public’s interest…” The City posits, “the statements made in these phone calls, the voices of the callers requesting emergency assistance and anyone else on the phone call, the callers’ intonations and inflections, as well as any background noises, are intimate details of a highly personal nature which implicates substantial privacy interests.” Exemption (f) The City asserts that disclosure of the 911 recordings will compromise the anonymity for the callers as witnesses; therefore, the City is withholding the 911 recordings, in their entirety, under Exemption (f). The City also redacted identities and identifying information of the witnesses who came forward under 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 material 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 on-going 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.

Seah Levy SPR20/2063 Page 5 November 9, 2020 Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438. The City’s November 5th response asserts, “…it properly redacted the names of civilian witnesses in the [City’s Police Department] reports, statements, and other materials relating to the investigation of [the identified decedent]. While the [DAO] decided not to bring criminal charges against the driver of the vehicle which struck [the identified person], at this time, the correspondence from the [DAO] does not indicate that they have conclusively decided to never bring charges against the driver. Moreover, the fact that an investigation has concluded does not destroy the investigatory exemption.” Citing, Bougas, 371 Mass. At 63. The City explains, “[r]eleasing the names of these civilian witnesses could have a deleterious impact on future criminal investigations because who are considering coming forward with information in future cases may be deterred by the risk that the public will have access to their names and personal information.” Based on the City’s October 19th and November 5th responses, I find that to the extent the recordings contains medical information or information identifying a voluntary witness, the recordings may be redacted. However, the City has not demonstrated that the recording may be withheld in its entirety, including the portions of the recordings pertaining to the 911 operator/dispatchers statements and questions. I find that the City has not met its burden of withholding the 911 recordings in their entirety under Exemptions (c) or (f). Conclusion Accordingly, the City is ordered to redact the responsive 911 recordings where necessary and provide Mr. Mason with the responsive recordings, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. In the alternative, if the City is unable to redact or modify the 911 recording to protect exempt information, the City may produce a transcript of the recording in order to provide a redacted record. 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.

Seah Levy SPR20/2063 Page 6 November 9, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Seah Levy