Laurie King v. Concord, Town of - Police Department (SPR 20213156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3156 Jodi Geary Records Access Officer Criminal Investigations Di vision Concord Police Department 219 Walden Street Concord, MA 01742 Dear Ms. Geary: I have received the petition of Laurie King appealing the response of the Concord Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2021, Ms. King requested a “copy of any and all records relating or referring to a bicycle crash that occurred on November 2, 2019 at or around 12:50 PM on Monument Street in Concord, MA.” The Department provided a response on September 23, 2021. Unsatisfied with the Department’s response, Ms. King petitioned this office and this appeal, SPR21/3156, 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

Jodi Geary, RAO SPR21/3156 Page 2 December 15, 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 23rd Response In its September 23, 2021 response, the Department stated, “[t]he information [Ms. King] requested falls within Exemption C (Privacy: Personal and Medical Information) and Exemption F (Investigatory: Voluntary Witness(es)/Informant(s). Therefore, the information is not considered a public record and must be withheld.” The Department explained, “Call Log 19-28249, Incident Repot 19-17326-OF, color photographs and audio recordings related to incident on 11/2/19 are being withheld in their entirety. The exempt personal information, medical information and multiple witness identifiers and statements are so inextricably intertwined that the requested records would be completely redacted.” 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). 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 Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v.

Jodi Geary, RAO SPR21/3156 Page 3 December 15, 2021 School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 the September 23rd response, the Department explained “[o]ur Department intends to withhold Call Log 19-28249, Incident Repot 19-28249-OF, color photographs an audio recordings due to the fact that they contain personal information which, if disclosed, would result in an unreasonable, substantial and se1ious interference with the involved individual's privacy.” The Department further explained it was proper to “withhold Call Log 19-28249, Incident Report 19-17326-OF, color photographs and audio recordings due to medical information.” Based on the September 23rd response, I find that the Department’s response did not meet its burden to withhold the records in their entirety under 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 must clarify this matter. In addition, while portions of the record may fall within an exemption, it is uncertain how the reports and records, in their entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, upon review of the balancing test, it is unclear how a privacy interest of a government official conducting public business outweighs the public interest in this situation. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Also, any non-exempt, segregable portion of a public record is

Jodi Geary, RAO SPR21/3156 Page 4 December 15, 2021 subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In the September 23, 2021 response, the Department stated, “[t]he requested audio recordings are being withheld under this Exemption as well due to the fact that the multiple 911 callers reporting the incident were voluntary witnesses and each person's voice and audio recording is identifying in nature.” To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, based on the

Jodi Geary, RAO SPR21/3156 Page 5 December 15, 2021 Department’s September 23rd response, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide the requested records in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laurie King