Makalah Lacy v. Boston, City of - Public Records (SPR 20211012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1012 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Makalah Lacy appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2021 Ms. Lacy requested, through her attorney at the time, Arielle Sharma, Esq., “all records related to Ms. Lacy and incidents originating at [a certain] Boston apartment complex [on five particular dates].” On March 23, 2021, Ms. Lacy further requested “all body camera footage by Boston police officers, 911 calls and BEMS or any other records for [certain] dates regrading incidents” with an identified individual and she indicated that she was “the person whose image or voice and likeness is in the recordings and documents.” The City responded on April 15, 2021, providing a number of redacted records responsive to Ms. Lacy’s request and indicating “[t]he 911 calls that were shared with [Ms. Lacy] have been redacted according to MA Public Record Law.” Unsatisfied with the City’s response, Ms. Lacy appealed, and this case was opened as a result. Status 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. Lacy’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Shawn Williams, Esq. SPR21/1012 Page 2 May 5, 2021 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. Current Appeal In her appeal petition, Ms. Lacy states that she is “appealing for lack of response [and is] also missing the 911 transcript for March 9th.” In addition, she “appeal[s] for unnecessary redactions also not receiving why redactions were made for [two] 911 calls.” The City’s April 15th Response In its April 15, 2021 response, the City claimed to redact records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(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). Medical information that is of a personal nature and relates to a specifically named individual may be 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

Shawn Williams, Esq. SPR21/1012 Page 3 May 5, 2021 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. Examiner, 404 Mass. 132, 135 (1987). 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. 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. 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 its response, the City explains “[p]ursuant to M.G.L. c. 66 §10 and M.G.L. c. 4 § 7(26)(c), any information regarding specific identity of the caller has been removed to protect their privacy. [The City] also redacted out calls that were non-responsive to [Ms. Lacy’s] request. The majority of redactions are related to calls not specific to the incidents that [Ms. Lacy] requested. They were other calls received by [the City’s] 911. In reading the transcripts, the redactions that are relative to [Ms. Lacy’s] calls were done so to preserve the 911 process and protect people’s privacy.” To the extent the City has removed 911 calls not responsive to Ms. Lacy’s request, and has redacted the identity of a victim or witness, I find the City has met its burden. However, as to numerous other redactions, the City has not met its burden of specificity. Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. -------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). In its response, the City included a Redaction Log with each transcript. A number of entries in the Redaction Logs cite Exemption (c), while others are left blank. Therefore, City’s

Shawn Williams, Esq. SPR21/1012 Page 4 May 5, 2021 response does not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to provewith specificity the exemption which applies”); -see also G-lobe News-paper Co.- v. Police -Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Where it has not cited an exemption nor provided an explanation for numerous redactions, I find the City did not satisfy its burden of specificity. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Additional Records in Existence Ms. Lacy states in her appeal that she is “missing the 911 transcript for March 9th.” In its response, the City provides five 911 call transcripts, all of which appear to be undated. It is unclear if the City possesses additional transcripts responsive to Ms. Lacy’s request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Lacy with a response to her request, 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, .() .11 ~ ~ ~ - ~0 1CUJW,IJ. ·~~ · Rebecca S. Murray Supervisor of Records cc: Makalah Lacy