Patrick J. Mason v. Worcester, City of - Police Department (SPR 20213167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3167 Michael Vigneux Records Access Officer 911 Lincoln Square Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Patrick Mason appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 24, 2021, Mr. Mason requested the following regarding a specific incident: a copy of 911 recording of incident Dispatch Log Witness statements of any [sic] Video or Photos obtained if any. Previous Appeal This request was the subject of a previous appeal. See SPR21/2659 Supervisor of Records Determination (October 20, 2021). In my October 20th determination, I ordered the Worcester Police Department to clarify whether additional records exist responsive to Mr. Mason’s request. The City of Worcester responded October 26th and October 28, 2021, providing additional responsive records in redacted form. Unsatisfied with the City’s response, Mr. Mason appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Michael Vigneux SPR21/3167 Page 2 December 15, 2021 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. Att’y 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. Current Appeal In his appeal petition, Mr. Mason explains that: One of the 911 caller’s Identifying information which was obtained because the dispatcher asked for it, was bleeped out. Also, the report titled a Call Taker’s Remake [sic], dated July 11, 2021 @17:02, has three redactions. Mr. Mason “believe[s] those redactions are the phone numbers of those who called in to report the motor vehicle accident. The City of Worcester redacted the information, driver’s license numbers, citing M.G.L. c. 93H, § 2 (c) and 940 C.M.R. 27.00.” He “request[s] a review by [this] office of the redacted information on the Call Taker’s Remake [sic] to determine the nature of the information. If the redactions are phone numbers belonging to witnesses, he request[s] a copy of the report without redactions.” The City’s Response In its September 27, October 26, and October 29, 2021 responses, the City cites Exemptions (a) and (c) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Michael Vigneux SPR21/3167 Page 3 December 15, 2021 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The City cites G. L. c. 93H, § 1, which provides the following definition: “Personal information” a resident’s first name and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident: . . . (b) driver’s license number or state-issued identification card number G. L. c. 93H, § 1. In its response, the City argues that “M.G.L. c. 93H and 940 C.M.R. 27.00 require the City to safeguard the personal information of residents of the Commonwealth, including driver’s license numbers. Therefore the City is prohibited from releasing this information.” 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 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).

Michael Vigneux SPR21/3167 Page 4 December 15, 2021 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); 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. 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. The City confirmed in a phone conversation with this office on December 7, 2021, that the three redactions in the responsive incident report are driver’s license numbers, as stated in its original September 27th response. As to the driver’s license numbers, the City argues the following under Exemption (c): Individuals have a privacy interest in disclosure of their social security numbers. . . . The City has determined that individuals possess a similar privacy interest in their driver’s license numbers. . . . With respect to the requested records, the City has determined the privacy interests associated with the disclosure the suspect’s driver’s license number outweighs the public interest in the disclosure. As to the phone numbers and identifying information of those who called 911, the City argues the following under Exemption (c): The requested records contain personally identifying information and contact information (name and personal phone number) of individuals who contacted the City for the purpose of obtaining assistance; these individuals provided information in order to receive such assistance and/or report conditions in exigent circumstances, not with the purpose or intent of disclosing their identities or personal information to the public. With respect to the requested records, the City has determined that the privacy interests associated with the disclosure of portions of the requested record (specified above) outweighs the public interest in the disclosure. Accordingly, the City has removed personally identifying information from the requested records. Based on the City’s response, I find the City has met its burden to redact the phone numbers and identifying information of individuals from the 911 calls, and to redact the driver’s license numbers from the responsive incident reports.

Michael Vigneux SPR21/3167 Page 5 December 15, 2021 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Mason is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Mason