Matthew Rocheleau v. Charlton, Town of - Police Department (SPR 20210746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2021 SPR21/0746 Lieutenant Dan Dowd Charlton Police Department 85 Masonic Home Road Charlton, MA 01507 Dear Lieutenant Dowd: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Charlton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 1, 2021, Mr. Rocheleau requested “[a]ny/all criminal complaints, incident reports, and/or arrest reports involving [an identified individual] for incident(s) that occurred in July 2019, including but not limited to reports for Dudley District Court case 1964CR002384.” Previous appeal This request was the subject of a previous appeal. See SPR21/0616 Determination of the Supervisor of Records (March 25, 2021). I closed SPR21/0616 with the understanding that the Department would provide a subsequent response. The Department provided a response on March 25, 2021. Unsatisfied with the Department’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/0616, was opened as a result. While this appeal was pending the Department provided a supplemental response on April 5, 2021. Based on Mr. Rocheleau’s petition, it appears he is appealing the document withheld under Exemption (c) only. 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. 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

Lieutenant Dowd SPR21/0746 Page 2 April 8, 2021 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 March 25th and April 5th responses In its March 25, 2021 response, the Department indicates that it possesses two documents that are responsive to the request. The Department states that “[t]he first document is an incident report, which is exempt under (A) 97D/Domestic Violence. The second document is a protective custody report, which is exempt under C.” In its April 5, 2021 supplemental response, the Department further states that “[t]he second document is a report for a protective custody for a substance abuse, which falls under a medical (exempt C).” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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 Med. Exam’r, 404 Mass. 132, 135 (1987).

Lieutenant Dowd SPR21/0746 Page 3 April 8, 2021 Further, 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). When analyzing a privacy claim, there is 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 withhold the responsive record from disclosure, the Department must provide this office with an un-redacted copy of responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record 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 an un-redacted copy of the responsive record for in camera inspection without delay.

Lieutenant Dowd SPR21/0746 Page 4 April 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau