Laura H. Ortiz v. Lynn, City of - Police Department (SPR 20230688)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2023 SPR23/0688 Lieutenant Paul Cotter Records Department Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Laura Ortiz appealing the response of the Lynn Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2022, Ms. Ortiz requested the following records: [1] …the investigation of text messages between officer [and] investigation report and all records submitted to the Peace Officers Standards and Training Commission; [2] …all internal affairs records for the eight officers who resigned, or were terminated, or were suspended as a result of the investigation. [3] any records that are additionally responsive and were forwarded to the Lynn Police Department from the Salem Police Department relating to [1] abd [sic] [2.] [4] any subsequent released records relating to [1], [2], or [3] as of the time Lynn Police Department sends any response to us if readily available[.] In an email on December 2, 2022, Ms. Ortiz clarifies that the records she was seeking were the text messages responsive to request number 3. Ms. Ortiz further clarifies that she sought records sent to the Department from the Essex District Attorney’s Office. Prior Appeals This request was the subject of prior appeals. See SPR22/0638 Determination of the Supervisor of Records (March 30, 2022); SPR22/1350 Determination of the Supervisor of Records (June 24, 2022); SPR22/1562 Determination of the Supervisor of Records (July 22, 2022); SPR22/1846 Determination of the Supervisor of Records (August 24, 2022); SPR22/2230 Determination of Supervisor of Records (October 18, 2022); SPR22/2363 Determination of Supervisor of Records (November 1, 2022); SPR22/2636 Determination of the Supervisor of 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

Lieutenant Paul Cotter SPR23/0688 Page 2 April 21, 2023 Records (December 1, 2022, December 22, 2022); and SPR22/2872 Determination of Supervisor of Records (December 22, 2022). In my December 22nd determination, I ordered the Department to identify any records it has in its possession that it intends to withhold, and to provide the specific reasons for such withholding. Subsequently, the Department responded on January 10, 2023, providing numerous responsive text messages, and citing Exemption (c) of the Public Records Law for withholding others. Unsatisfied with the Department’s response, Ms. Ortiz further 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. The Department’s January 10th Response In its January 10, 2023 response, and in prior responses, the Department confirms that it has provided all records responsive to parts 1, 2, and 4 of the request. In its January 10th response, the Department provides approximately 100 text messages from an officer’s personal cell phone, responsive to part 3 of the request, and cites Exemption (c) of the Public Records Law for withholding others. See G. L. c. 4, § 7(26)(c). Specifically, the Department states that “the 4,172 pages of [withheld] text messages contain references to family disputes, marital and relationship issues, financial information [and] medical concerns.” 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

Lieutenant Paul Cotter SPR23/0688 Page 3 April 21, 2023 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. 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: It is the position of the City of Lynn that the text messages, photographs, memes and videos contained in [the] former Officer[’s] cellphone are exempt from disclosure by the privacy exception to the Massachusetts Public Records Law. . . . Here, all of the text messages were downloaded from [the] Officer’s ... personal cellphone. The cellphone in question was not issued to [the] Officer ... by the City of Lynn and was not utilized in the course of his employment with the City of Lynn. [The] Officer[’s] ... cellphone was not utilized for law enforcement duties or in his role as a public employee. The vast majority of the text messages were between [his] family members and friends and were completely unrelated to his public employment. These include text messages with family members, including immediate family members, business acquaintances and friends. The text messages relate to dinner plans, family issues, personal opinions on current events and public officials, jokes sent to friends and family and family photographs and videos.

Lieutenant Paul Cotter SPR23/0688 Page 4 April 21, 2023 . . . Here, all of the text messages were on a private phone and not related to [the] Officer[’s] public employment. It is the position of the City of Lynn that the public has no right to access records that include a public official’s dinner plans, family issues, family photographs, or household bill payment confirmation. Nor does the public have a right of access as to what time a public employee’s household member intended on coming home on a date certain or what the weekend plans were of a public employee’s family[.] . . . [T]here exists no public interest in disclosure ... of personal communications between family members. Private text messages to family members and friends are private in nature. They are unlike tweets or Facebook posts where the author knows that the submittal will be accessible to the public at large. When a husband texts his wife, he has every expectation that this text message will not be disseminated to the public at large. Additionally, the Department confirms that it “has segregated those text messages that include racially charged texts and attached the same to [the] response” provided to Ms. Ortiz. Based on the information provided in the Department’s response, where the withheld text messages were contained on a personal cellular phone, and not related to the former officer’s public employment, I find that the public interest in obtaining the withheld text messages does not substantially outweigh the seriousness of any invasion of privacy. Accordingly, the Department has met its burden to withhold the records described above pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ortiz 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, Manza Arthur Supervisor of Records cc: Laura Ortiz James Lamanna, Esq.