Lee Fruzzetti v. Bristol County District Attorney's Office (SPR 20221457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2022 SPR22/1457 Mary Lee, Esq. Assistant District Attorney Records Access Officer 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Lee Fruzzetti appealing the response of the Bristol District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2022, Mr. Fruzzetti requested “pictures of [a named victim], of his wounds at the hospital Easton Police took date of December 25, 2017.” The Office responded on April 27, 2022, denying the request. Unsatisfied with the Office’s response, Mr. Fruzzetti 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). Therefore, Mr. Fruzzetti’s interest in obtaining the responsive photographs shall have no bearing on the public nature of the records. Where Mr. Fruzzetti seeks the records for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Fruzzetti may wish to consider another means of seeking to obtain the responsive records. 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 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

Mary Lee, Esq. SPR22/1457 Page 2 July 6, 2022 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. The Office’s April 27th Response In its April 27, 2022 response, the Office cites Exemptions (c) and (f) of the Public Records Law for withholding the responsive photographs. See G. L. c. 4, § 7(26)(c) and (f). The Office reiterates its arguments under Exemptions (c) and (f) in a subsequent letter to this office and Mr. Fruzzetti on June 30, 2022. 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

Mary Lee, Esq. SPR22/1457 Page 3 July 6, 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. In its April 27th response, the Office argues the following under Exemption (c): Private individual information is exempted from public dissemination, including physical injuries and medical treatment. . . . It would be an unwarranted invasion of privacy to publicly release photographs of the physical injuries of a victim of a crime that were taken at a hospital where the individual was receiving medical treatment. Additionally, in its June 30th letter, the Office argues the following: Photographs of an individual’s injuries to his or her body while in a hospital are both medical information and materials or data which if disclosed would constitute an unwarranted invasion of privacy. Any person who has been treated in a hospital would not want their photographs at that hospital to be broadcast publicly. In this case, where the responsive photographs of a victim’s wounds constitute medical information that is of a personal nature, and relates to a specifically named individual, I find the Office has met its burden to withhold the photographs pursuant to Exemption (c). See G. L. c. 4, § 7(26)(c). As these records may be withheld pursuant to Exemption (c), I decline to address the Office’s arguments under Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Fruzzetti is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Lee Fruzzetti (by mail)