Rich Saltzberg v. Oak Bluffs, Town of - Town Administrator (SPR 20222396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2022 SPR22/2396 Wendy Brough Assistant Town Administrator Town of Oak Bluffs 56 School Street P. O. Box 1327 Oak Bluffs, MA 02557 Dear Ms. Brough: I have received the petition of Rich Saltzberg, of the Martha’s Vineyard Times, appealing the response of the Town of Oak Bluffs (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Mr. Saltzberg requested the following: [1] ... any and all Jan 1, 2015 to Sept. 1, 2022 requests for records or subpoenas for records made by any member of the FBI or the U.S. Attorney’s Office or the Justice Department. [2] ... any and all records provided to the FBI or the U.S. Attorney’s Office or the Justice Department in response to any Jan 1, 2015 to Sept. 1, 2022 records request or any Jan 1, 2015 to Sept. 1, 2022 subpoena. [3] ... any and all grand jury subpoenas received by the town, its employees, agents or attorneys between Jan 1, 2015 to Sept. 1, 2022. The Town responded on October 14, 2022, denying the request and citing Exemptions (c) and (f) of the Public Records Law. Unsatisfied with the Town’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 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

Wendy Brough SPR22/2396 Page 2 November 4, 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. 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 Town’s October 14th and October 27th Responses In its October 14, 2022 response, and in a subsequent letter to Mr. Saltzberg and this office on October 27, 2022, the Town states that it is withholding responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c) and (f). 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. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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. Exam’r, 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Wendy Brough SPR22/2396 Page 3 November 4, 2022 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. In its October 14th response, under Exemption (c), the Town argues that the responsive records: include “medical files or information” regarding patients who were transported by OBFD ambulances, and other information pertaining to specifically named individuals, “the disclosure of which may constitute an unwarranted invasion of personal privacy,” ... and would likewise expose individuals to the very unwarranted “notoriety and disgrace” against which the grand jury secrecy rules are designed to protect. [citations omitted] Based on the Town’s response, to the extent that the records contain medical information that relates to a specifically named individual, the Town may permissibly withhold such portions from disclosure. However, the Town has not demonstrated that the records, in their entirety, may be withheld under Exemption (c). Specifically, it is unclear how records apparently relating to investigations into the conduct of public officials could constitute intimate details of a highly personal nature. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide information with respect to the balancing test which examines whether the public interest in obtaining the non-medical portions of the requested records outweighs the seriousness of any invasion of privacy. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f).

Wendy Brough SPR22/2396 Page 4 November 4, 2022 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its October 14th response, the Town argues the following under Exemption (f): Federal law-enforcement authorities have specifically requested that the Town not disclose to anyone any request or subpoena the Town has received in the course of the Federal Investigation, or the Town’s compliance therewith, because, as the federal authorities have stated, any such disclosure could impede the Federal Investigation and interfere with the enforcement of federal law. Specifically with respect to any grand jury subpoena the Town may have received, and any and all documents provided in response to any such subpoena, all materials responsive to [Mr. Saltzberg’s] request are exempt from production on the separate and additional ground of grand jury secrecy. In its October 27th letter, the Town further argues under Exemption (f): The October 7 Request seeks only two types of documents: requests from federal law enforcement agencies (including grand jury subpoenas) and documents produced in response to those requests. Those are the very sort of investigatory materials that lie at the core of Exemption (f) and the principle of grand jury secrecy. By their nature, these materials contain no non-exempt material that is segregable. While certain responsive material (e.g., the names of individuals identified as witnesses or subjects or targets of the investigation, and personal identifying information and medical information regarding patients transported in Oak Bluffs Fire Department ambulances) is particularly sensitive and exempt from disclosure, all of the information requested by the MV Times falls within Exemption (f). The Town goes on to argue that “the Town would oppose providing the MV Times with a ‘detailed description of the records’ because that would undermine the very purpose of Exemption (f) and grand jury secrecy.” Based on the Town’s responses, it is unclear which specific records the Town intends to withhold. The Town must identify the records, categories of records, or portions of records it

Wendy Brough SPR22/2396 Page 5 November 4, 2022 intends to withhold under Exemption (f). See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Town 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. Sincerely, Manza Arthur Supervisor of Records cc: Rich Saltzberg David J. Apfel, Esq.