Todd Wallack v. Town of Erving - Town Administrator (SPR 20230647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2023 SPR23/0647 Bryan Smith Records Access Officer Select Board Town of Erving 12 East Main Street Erving, MA 01344 Dear Mr. Smith: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Town of Erving (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 20, 2023, Mr. Wallack requested “the Oct. 9, 2018 letter Chief Christopher Blair sent to the Board of Selectman regarding recommendations for disciplining [a named] Officer.” The Town responded on April 3, 2023, providing one responsive record in redacted form. Unsatisfied with the Town’s response, Mr. Wallack 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 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 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

Bryan Smith SPR23/0647 Page 2 April 18, 2023 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Wallack contends the following: The town redacted portions of a police disciplinary letter, citing exemption (c). The current language of the public records statute states that exemption (c) does not apply to records related to misconduct by law enforcement officers, as is the case here. In addition, even when exemption (c) applies, the Supervisor of Records and the courts have found that it requires a balancing test weighing the public interest in favor of disclosure against the privacy interest in redacting the information. This particular case involves a matter that has been widely publicized, including in WBUR and the Boston Globe, and is clearly in the public interest. The Town’s April 3rd Response In its April 3, 2023 response, the Town provides one responsive letter in redacted form, and cites Exemption (c) of the Public Records Law for redacting the responsive record. 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. 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.

Bryan Smith SPR23/0647 Page 3 April 18, 2023 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 April 3rd response, under Exemption (c), the Town argues the following: The enclosed record has been redacted in four (4) places - items numbered 3., 4., 6., and 7. on the first page of the two-page document. Each of these redactions have been made as the information contained in those numbered items constitutes medical information relating to a specifically named individual, the disclosure of which would constitute an unwarranted invasion of personal privacy[.] Additionally, under the PETA balancing test, the Town further argues the following: When the balancing test is applied and the above-noted factors are considered in regard to your request for an un-redacted copy of the October 9, 2018 memorandum letter, the private interest in preventing disclosure of an individual’s medical information far outweighs the public interest in obtaining the requested record. Not only would the production of such redacted information result in a disclosure of confidential medical information, it would also result in personal embarrassment to an individual of normal sensibilities. Moreover, such information is not available from other sources, it contains details of a highly personal nature Subsequent to the opening of this appeal, in an email to this office on April 7, 2023, the Town explains that the responsive letter was part of a previous production of records, and refers to SPR20/2597 Determination of the Supervisor of Records (January 12, 2021). The Town goes on to argue the following: In the instant case, the Town sent the exact same redacted copy of the October 9, 2018 memorandum letter with its April 3, 2023 response to Mr. Wallack and again made clear that the information covered by each of the four redactions made to that letter is exempt from disclosure under Exemption (c) as medical information relating to a specifically named individual, and that the disclosure of such redacted information would constitute an unwarranted invasion of personal privacy under the Exemption (c) balancing test.

Bryan Smith SPR23/0647 Page 4 April 18, 2023 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Town to redact the responsive record, the Town must provide this office with an un- redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 10A. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack Corey F. Higgins, Esq.