Tom Mohan v. Greenfield, City of - Police Department (SPR 20212559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2021 SPR21/2559 Gillian Halkett Records Clerk Records Department Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Ms. Halkett: I have received the petition of Tom Mohan appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 3, 2021, Mr. Mohan requested “a digital copy of the 911 call recording, along with the call log records and any Police Report or other similar documentation generated by your department” concerning the identified incident on 9/17/2018. The Department provided a response on September 7, 2021. Unsatisfied with the Department’s response, Mr. Mohan petitioned this office and this appeal, SPR21/2559, 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. 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

Gillian Halkett SPR21/2559 Page 2 October 19, 2021 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 7th Response In its September 7, 2021 response, the Department stated, “[t]he record that this department possesses, responsive to your request, is call number 18-23655. This document involves action related to medical information and/or hospitalization of an involved individual. Given that information, the department is denying your request in that these records are exempt from public records under the statute relating to the medical/privacy exception, Ch. 4 sec 7(26)(c). For those reasons we are denying your 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). 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. 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). Based on the Department’s September 7th response, I find that the Department did not satisfy its burden in withholding these records pursuant to Exemption (c). To the extent the records contain medical information of an identified individual, the Department may permissibly withhold that portion from disclosure. However, it is unclear why the Department cannot provide segregable portions of the requested responsive records. The Department’s response did not contain the specificity required in a denial of access to public records in its entirety. The Department 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. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify this matter.

Gillian Halkett SPR21/2559 Page 3 October 19, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. Mohan with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Tom Mohan