Patricia Nieberg v. Massachusetts Department of State Police (SPR 20212446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2446 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.” Previous appeal This request was the subject of a previous appeal. See SPR21/2050 Determination of the Supervisor of Records (August 24, 2021). In my August 24th determination, I found the Department had not met its burden of specificity to withhold responsive records, in their entirety, from disclosure under Exemption (c). Accordingly, the Department was ordered to provide Ms. Nieberg with a response. Subsequently, the Department provided a response on September 17, 2021. 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. 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. SPR21/2446 Page 2 October 7, 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 September 17th response In its September 17, 2021 response, the Department indicates that it “. . . located reports and witness statements that are responsive to Ms. Nieberg’s request.” Citing Exemption (c), the Department explains that it “. . . takes the position that the responsive reports and witness statements implicate a matter of an intimate detail of a highly personal and private nature as they relate to the death and alleged substance abuse of [a deceased individual]. The Department asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive personal matters. A family’s privacy interests under these types of circumstances considerably outweigh the public’s interest in disclosure.” The Department further states, “[i]n conducting the balancing test described in G.L. c. 4, §7 cl. 26(c), the Department determined that the privacy interests of [the deceased individual] and her immediate family outweigh the requestor’s right to know the details of a tragic and personal matter like this. The reports and witness statements that the Department identified as responsive to the request relate directly to the alleged substance abuse, medical issues and death of [the deceased individual].” The Department contends, “[t]he majority of the records contain documentation, observations and descriptions of [the deceased individual] as relates to her medical issues, alleged substance abuse and her death and as such, providing the records in redacted form would make them functionally useless. Thus, the Department denies Ms. Nieberg’s request.” 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

Allison Hynes, Esq. SPR21/2446 Page 3 October 7, 2021 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). 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. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims under Exemption (c) to withhold the responsive records from disclosure, 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 document, I will return the record to your 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. Massachusetts 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

Allison Hynes, Esq. SPR21/2446 Page 4 October 7, 2021 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. 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: Patricia Nieberg