Sara Lamontagne v. Stoughton, Town of - Police Department (SPR 20213241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2021 SPR21/3241 Donna McNamara Chief of Police Records Access Officer Stoughton Police Department 26 Rose Street Stoughton, MA 02072 Dear Chief McNamara: I have received the petition of Sara Lamontagne appealing the response of the Stoughton Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 29, 2021, Ms. Lamontagne requested, “all records, with no redactions, involving the death of [a named individual].” Previous Appeal This request was the subject of a previous appeal. See SPR21/3128 Supervisor of Records Determination (December 13, 2021). There, the Department provided a supplementary response on December 13, 2021. Unsatisfied with that supplementary response, Ms. Lamontagne petitioned this office and this appeal, SPR21/3241, 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 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

Donna McNamara SPR21/3241 Page 2 December 21, 2021 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. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Lamontagne’s purpose in making the request and relationship with the requestor have no bearing on the public status of any existing responsive records. The Department’s December 13th and 14th Responses On December 13, 2021, the Department declined to produce the records pursuant to Exemption (c) of the Public Records Law. G.L. c. 4, § 7(26) (c). The Department subsequently provided Ms. Lamontagne with a redacted version of the report on December 14, 2021, pursuant to Exemption (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. 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

Donna McNamara SPR21/3241 Page 3 December 21, 2021 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 its December 13th response, the Department stated, “[t]he Department ‘believes that a family’s privacy interests under these types of circumstances considerably outweighs the public’s interest in disclosure’…The information contained in [the report] could result, if disclosed, in personal and/or familial embarrassment to an individual of normal sensibilities. The materials sought in [the report] contain intimate details of a highly personal nature, including medical information…family disputes and reputation, social security numbers, license numbers, and dates of birth, which is all greatly private information that people go to great lengths to keep private and not have publicized. This information is not readily available from other sources and not widely known outside of [the named individual’s] family. Also, the medical information and the facts surrounding [the individual’s death] are extremely private in nature that the family would not want publicized to prevent embarrassment.” In light of the Department’s response, to the extent that the records contain medical information of an identified individual, the Department may permissibly withhold such portions from disclosure. However, the Department has not demonstrated how a date of birth is an intimate detail of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Department’s response, whether this information is available from other sources. The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Ms. Lamontagne with a response to her 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.

Donna McNamara SPR21/3241 Page 4 December 21, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sara Lamontagne