Sarah L. Ryley v. Framingham, City of - Police Department (SPR 20220566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2022 SPR22/0566 Marilia Martins Records Manager Framingham Police Department 150 Concord Street, Room B7 Framingham, MA 01702 Dear Ms. Martins: I have received the petition of Sarah Ryley of the Boston Globe appealing the response of the Framingham Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2022, Ms. Ryley requested full police reports pertaining to the Wayside Youth & Family Support Network’s Framingham facilities as follows: 1. All reports pertaining to an alleged felony or misdemeanor sex crime, from Jan. 2018 through the date upon which this request is filled. 2. All reports pertaining to an incident involving the use of physical force, from Jan. 2018 through the date upon which this request is filled [including] an injury of a [named] Wayside employee … which … happened in the summer of 2019. 3. All reports pertaining to runaway or missing people in March 2020. 4. All reports pertaining to overdoses and/or seizures in December 2019 … The Department responded on March 3, 2022. Unsatisfied with the response, Ms. Ryley petitioned this office and this appeal, SPR22/0566, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Marilia Martins SPR22/0566 Page 2 March 22, 2022 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Department’s March 3rd response In its March 3rd response, the Department denied access to responsive records under Exemptions (a) and (c) of the Public Records Law. 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 March 3rd response, the Department cited G. L. c. 41, § 97D and G. L. c. 119, § 60A, indicating that the records are exempt from disclosure. G. L. c. 41, § 97D provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality…

Marilia Martins SPR22/0566 Page 3 March 22, 2022 G. L. c. 119, § 60A provides in pertinent part: All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court … Although the Department’s response indicates that the requested records fall under the identified statutes and are restricted from disclosure, the Department has not identified the responsive records it is withholding. Additionally, the Department must clarify whether the records it is withholding under G. L. c. 119, § 60A are records of the court, as required by the statute. Additionally, the Department cited the Criminal Offender Record Information (CORI) Act to withhold some of the responsive records. The updated definition of CORI states in relevant part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Based on the foregoing, I find the Department has not met its burden to demonstrate how the requested records are exempt under the CORI Act. Specifically, it is unclear how these records contain “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). 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

Marilia Martins SPR22/0566 Page 4 March 22, 2022 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. 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. 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. With respect to request number 4, the Department stated, “[t]he records requested contain medical files or information which must be withheld/redacted from the records pursuant to this exemption. The incident involved is medical in nature. As a result, such information must be withheld/redacted under the law.” Under the Public Records Law, the burden shall be upon the records custodian to identify

Marilia Martins SPR22/0566 Page 5 March 22, 2022 records being withheld and prove with specificity the exemption which applies. G. L. c. 66, §10 (b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); -see also -Globe N-ewspape-r Co. v. -Police C-omm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). Upon review the Department has not identified the records it has in its possession that are medical in nature. It is also unclear whether segregable portions of the records could be provided. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Ryley with a response to her request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Ryley may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sarah Ryley