Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20213387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13 2022 SPR21/3387 Major Greg Arpin Assistant Deputy Superintendent of Operations Dukes County Sheriff's Office 149 Main Street Edgartown, MA 02539 Dear Major Arpin: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Dukes County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 30, 2021, Mr. Saltzberg requested “any and all visitor logs for the Dukes County Jail from July 15, 2011 to December 15, 2011.” Previous Appeal This request was the subject of a previous appeal. See SPR21/3127 Supervisor of Records Determination (December 9, 2021). In my December 9th determination, I ordered the Office to explain how the exemptions it cited apply to the records being withheld. Subsequently, the Office responded on December 13, 2021. Unsatisfied with the Office’s response, Mr. Saltzberg 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). 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 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

Major Greg Arpin SPR21/3387 Page 2 January 13, 2022 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 Office’s December 13th Response In its December 13, 2021 response, the Office cites Exemptions (a) and (c) of the Public Records Law for withholding 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). 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. In its December 13th response and in a letter to this office on January 5, 2022, the Office cites numerous statutes for withholding the responsive visitor logs under Exemption (a), including the following: G. L. c. 6, § 167 (Criminal Offender Record Information); c. 111, § 70 (Records of hospitals or clinics); c. 111B, § 11 (Alcoholism treatment records); c. 111E, § 18 (Drug rehabilitation treatment records). The Office argues that “the names and contact information of health care professionals providing services to prisoners . . . when listed in the

Major Greg Arpin SPR21/3387 Page 3 January 13, 2022 Visitor Log, falls under the Exemption.” Although certain information contained in the visitor logs may fall under the statutes cited above, the Office has not met its burden to show how the records may be withheld in their entirety under such statutes. The Office must explain whether segregable portions of the logs can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). 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.

Major Greg Arpin SPR21/3387 Page 4 January 13, 2022 In its December 13, 2021 response, the Office cites a number of prior determination letters issued by this office and argues that “a privacy interest in personal associations” outweighs the public interest involved in the current case. See SPR12/0017 Supervisor of Records Determination (July 23, 2012); SPR10/0116 Supervisor of Records Determination (June 24, 2010); SPR03/0062 Supervisor of Records Determination (January 8, 2004). Please note that these determinations were issued prior to the Supreme Judicial Court’s ruling in PETA, as discussed above. See PETA, 477 Mass. at 292. Additionally, under Exemption (c), the Office argues the following: There is a strong “public policy” favoring not releasing Visitor Logs. (Conversely, there is no legitimate public purpose for providing . . . such information.) An essential element of prisoner rehabilitation is contact with the outside, especially those that will provide an essential support system upon the individual’s release. By releasing visitor logs, some family members and friends are likely to reduce or eliminate visits. This is a very small island, with less than 20,000 year-round residents. Based on the Office’s response, I find the Office has not met its burden to demonstrate how disclosing a visitor’s identifying information would result in personal embarrassment to an individual of normal sensibilities. Further, in light of the procedures governing visitation to jails, e.g., those articulated in G.L. c. 127, § 36, and 103 C.M.R. 483, the Office has not demonstrated how the visitor names are intimate details of a highly personal nature. Additionally, the Office has not addressed whether this information is available from other sources. See PETA, 477 Mass. at 291-92. Further, the Office has not established that the seriousness of any invasion of privacy is not outweighed by the public interest in obtaining the requested information. See PETA, 477 Mass. at 291. It is unclear how the public does not have an interest in knowing how the Office handles prisoner visitation and the extent to which the Office complies with its visiting policy at the jail. See PETA, 477 Mass. at 291-92. In light of the PETA analysis, I find the Office has not met its burden to establish that Exemption (c) applies to withhold the responsive records. Conclusion Accordingly, the Office is ordered to provide Mr. Saltzberg 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.

Major Greg Arpin SPR21/3387 Page 5 January 13, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg