Patricia Nieberg v. Massachusetts Department of State Police (SPR 20212050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2050 Allison Hynes, Esq. Staff Legal Counsel Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received the petition of Patricia Nieberg of the Associated Press 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). Ms. Nieberg requested “State police investigation, incident reports, witness statements into the death of [a named individual] on 8/18/15.” The Department provided a response on August 13, 2021, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Ms. Nieberg petitioned this office and this appeal, SPR21/2050, 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

Allison Hynes, Esq. SPR21/2050 Page 2 August 24, 2021 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 August 13th response In its August 13, 2021 response, the Department states that it “. . . has located records that are responsive to your request. However, the Department denies your request for records under G.L. c. 4, §7 cl. 26(c) . . .” Exemption (c) Exemption (c) permits the withholding of: 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 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 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 Medical Examiner, 404 Mass. 132, 135 (1987). This exemption 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 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).

Allison Hynes, Esq. SPR21/2050 Page 3 August 24, 2021 This exemption 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 Department explains that the requested records “. . . implicate a matter of an intimate detail of a highly personal and private nature as it relates to the death of [a named individual]. The Department asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive personal matters. The Department asserts that a family’s privacy interests under these types of circumstances considerably outweigh the public’s interest in disclosure. . . . National Archives & Records Adm. v. Favish, 541 U.S.157 (2004) (The United States Supreme Court ruled under the Federal Freedom of Information Act that ‘family 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’).” The Department contends that “. . . the privacy interests of the deceased and her immediate family outweigh the requestor’s right to know the details of a tragic and personal matter like this.” Although the Department indicates that it has located records, it is unclear what records the Department possesses that it withheld from disclosure. The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Nieberg’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 2.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Further, it is uncertain how the records can be withheld in their entirety under Exemption (c). The Department must clarify whether segregable portions can be provided. 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 these issues. Conclusion Accordingly, the Department is ordered to provide Ms. Nieberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Allison Hynes, Esq. SPR21/2050 Page 4 August 24, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patricia Nieberg