Ann Shepard v. Whitman, Town of - Police Department (SPR 20221107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2022 SPR22/1107 Melissa Madden Records Clerk Whitman Police Department 20 Essex Street Whitman, MA 02382 Dear Ms. Madden: I have received the petition of Ann Shepard appealing the response of the Whitman Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2022, Ms. Shepard requested the police reports for a specified incident on February 26, 2022. The Department responded on May 4, 2022, citing Exemption (c) of the Public Records Law for withholding the responsive records. Unsatisfied with the Department’s response, Ms. Shepard appealed, and this case was opened as a result. Status of the 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. Shepard’s interest in obtaining the report will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. Based on information provided in her appeal petition, it is unclear if Ms. Shepard may have a greater right of access to the responsive records outside the Public Records Law. Ms. Shepard and the Department are encouraged to communicate directly to determine if there is another means affording Ms. Shepard a greater right of access to the responsive records. 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

Melissa Madden SPR22/1107 Page 2 May 23, 2022 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 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 Department’s May 4th Response In its May 4, 2022 response, the Department states that it is withholding the requested records pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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

Melissa Madden SPR22/1107 Page 3 May 23, 2022 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 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 Department argues the following: The records requested contain medical files or information which must be withheld/redacted from the records pursuant to this exemption. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (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. Based on the Department’s response, the Department has not met its burden to withhold the requested record in its entirety. To the extent that the record contains medical information regarding a specifically named individual, the Department may permissibly withhold such portions from disclosure. However, the Department has not demonstrated that the records, in their entirety, are intimate details of a highly personal nature. Specifically, it is unclear how information such as the date and time of the report, the names of responding officers, and time arrived, are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Conclusion Accordingly, the Department is ordered to provide Ms. Shepard 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.

Melissa Madden SPR22/1107 Page 4 May 23, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ann Shepard