Andrew Quemere v. Springfield, City of - Police Department (SPR 20220469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2022 SPR22/0469 Stephen G. Roche, Esq. Associate City Solicitor City of Springfield 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Andrew Quemere appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2022, Mr. Quemere requested certain internal affair records and transcripts from a federal criminal trial. Previous Appeal This request was the subject of a previous appeal. See SPR22/0437 Supervisor of Records Determination (February 25, 2022). In my February 25th determination, I closed SPR22/0437 in light of the City’s supplemental response. Unsatisfied with the City’s response, Mr. Quemere 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

Stephen G. Roche, Esq. SPR22/0469 Page 2 March 10, 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. Current Appeal In his appeal petition, Mr. Quemere contends that “some of the records the city provided in response to this request do not have searchable, machine-readable text as required by the public records law.” Additionally, he argues that “the city has not identified the basis for the redactions it made to the records, as required by the public records law. It also has not indicated if it has withheld any records in their entirety and its basis for doing so, as required by the public records law.” The City’s Responses In its March 3, 2022 response, the City states that it redacted responsive records pursuant to Exemption (c) of the Public Records Law, and that certain records cannot be provided in a machine readable format. 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. 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. 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

Stephen G. Roche, Esq. SPR22/0469 Page 3 March 10, 2022 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. Under Exemption (c), the City states the following: Redacted were the following types of information: • victim names and personal information, including dates of birth, home addresses and private telephone numbers • witness names and personal information, including dates of birth, home addresses and private telephone numbers • the names of individuals not involved in an incident • affidavits for search warrants In reviewing these records, we determined that the release of this information would result in an “unwarranted invasion of privacy.” Although Exemption (c) allows for the redaction of medical information that is of a personal nature and relates to a specifically identified individual, the City has not met its burden to explain how information may be redacted pursuant to Exemption (c). The City must clarify this matter and explain how it may apply this exemption when the language of Exemption (c) states it does not apply to records related to a law enforcement misconduct investigation. Requestor’s Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In this case, various responsive records were provided to Mr. Quemere in machine readable format, while others were not. In its response, the City states that “the Springfield Police Department’s Internal Investigations Unit (IIU) . . . use[s] a paper-based system for its investigations. After the IIU case is closed, they scan all the paper documents into the computer. When requests come in for IIU records, they send the files to City Hall for review and redaction. That is how the records in question were handled.” Although a number of the responsive records consist of hand-drawn diagrams and hand-filled forms, based on the City’s response, it is unclear why it is not feasible to provide other scanned documents in searchable machine-readable form. The City must clarify this.

Stephen G. Roche, Esq. SPR22/0469 Page 4 March 10, 2022 Conclusion Accordingly, the City is ordered to provide Mr. Quemere 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: Andrew Quemere