Nina Sparling v. New Bedford, City of - Police Department (SPR 20222495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2022 SPR22/2495 Officer Michael Boswell Record Access Officer New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Nina Sparling appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2022, Ms. Sparling requested, “… any recordings or transcripts of the 911 calls listed in the attachment to this email.” Prior appeals This request was the subject of prior appeals. See SPR22/1289 Determination of the Supervisor of Records (June 15, 2022) and SPR22/1720 Determination of the Supervisor of Records (August 10, 2022). In my August 10th determination, I found that the Department intended on providing a further response and closed the appeal. On August 24, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Sparling petitioned this office and this appeal, SPR22/2495, 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

Officer Michael Boswell SPR22/2495 Page 2 November 17, 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). 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 August 24th response In its August 24, 2022 response, the Department claims that the records are exempt under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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. Under Exemption (a), the Department explains that “[t]he Department is further withholding the documents in conformance to 45 C.F.R. § 164.502(a)(1), known as the HIPPA Privacy Rule, as made applicable by G.L. c. 4, § 7(26)(a). 45 C.F.R. § 164.502(a)(1) states that ‘[a] covered entity . . . may not use or disclose protected health information . . .’” The Department also notes that “[o]ne of the three definitions for what constitutes a ‘covered entity’

Officer Michael Boswell SPR22/2495 Page 3 November 17, 2022 is a ‘health care provider who transmits any health information in electronic form in connection with a transaction covered by [45 C.F.R. § 164.502(a)(1)].’” The Department further explains “[i]n the present instance, New Bedford EMS is an organization that renders medical care to individuals when called by the public. This means that New Bedford EMS is an entity that 45 C.F.R. § 164.502(a)(1) encompasses and the 30 911 calls qualify as health information provided in an electronic form. Therefore, since redaction is not capable of being made, withholding the records are the only proper option.” The Department must clarify how it is a covered entity as defined by HIPAA. Also, it is unclear how the records in their entirety would constitute protected health information under HIPAA. The Department must clarify this matter. 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 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 is 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. Id. 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. 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)

Officer Michael Boswell SPR22/2495 Page 4 November 17, 2022 (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. Under Exemption (c), the Department applied the PETA analysis stating the following: Regarding the first factor, the disclosure of medical information contained in a 911 call would stand to personally embarrass the subject of the call among other members of the community, as these calls were made in confidence with the intent to seek medical attention by the specific individuals themselves or by representatives of those individuals in cases where the individual was not able to call 911 themselves. For the second factor, these 911 calls are linked to intimate details of a highly personal nature, namely because they discuss the then personal health status/condition of the specifically identified individuals at the time as well as other intimate details such as age, previous medical issues, and potential location of employment. Finally, regarding the third factor, this information is not openly available through other sources. It is for these reasons, and because redaction is not possible, that the withholding of these audio files is proper To the extent that the recordings contain medical or personal information of a specifically identified individual, I find the Department may withhold those portions from disclosure. However, it is unclear how the Department cannot redact personal and medical information from the responsive recordings. See 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain why segregable portions cannot be provided. Conclusion Accordingly, the Department is ordered to provide Ms. Sparling with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Officer Michael Boswell SPR22/2495 Page 5 November 17, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Nina Sparling Nicholas DeMarco, Esq.