Medha Swaminathan v. Salem, City of - Police Department (SPR 20231099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2023 SPR23/1099 Ann Marie Greene Principal Clerk Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Medha Swaminathan, of the American Civil Liberties Union of Massachusetts, appealing the response of the Salem Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2023, Ms. Swaminathan requested the following records: [1.] All current policies, procedures, guidelines, briefings, and training materials, regarding emergency restraint and hospitalization pursuant to Section 12 (Mass. Gen. Laws ch. 123, § 12). [2.] All current policies, procedures, guidelines, briefings, and training materials regarding the Americans with Disabilities Act. [3.] Records that reflect the number of Section 12 forms completed by the Salem Police Department between April 13, 2022 and April 13, 2023. [4.] Records that reflect the number of individuals who were admitted to a facility for hospitalization after a Salem Police Officer completes a Section 12 form about that individual between April 13, 2022 and April 13, 2023. [5.] All Section 12 forms filled out by Salem Police Department officers between April 13, 2022 and April 13, 2023 that contain any of the following terms: “impulse control,” “paranoia” or “paranoid,” “mental health issues,” or “mental health crisis,” with personally identifying information redacted. [6.] All Section 12 forms filled out by Salem Police Department officers between April 13, 2022 and April 13, 2023 that involve individuals with an address 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

Ann Marie Greene SPR23/1099 Page 2 June 7, 2023 “homeless,” with personally identifying information redacted. [7.] All case or incident reports between April 13, 2022 and April 13, 2023 that include the code 18A (Medical – Section 12). [8.] All current policies, procedures, guidelines, briefings, and training materials used to train the Salem Police Department’s emergency dispatcher. This includes, but is not limited to, all policies, procedures, guidelines, briefings, and training materials regarding how to determine which responders to send to different situations including physical and mental health emergencies, what codes to use for different situations, and what information to record as part of the dispatch process. The Department provided responses on May 5, 2023 and May 8, 2023. Unsatisfied with the Department’s responses, Ms. Swaminathan petitioned this office, and this appeal, SPR23/1099, 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. Attorney 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 May 5th and May 8th responses Items 1, 3, and 8 In response to Items 1, 3, and 8 of the request, the Department provided responsive records. Item 2 In response to Item 2 of the request, the Department stated the following:

Ann Marie Greene SPR23/1099 Page 3 June 7, 2023 All information regarding this respective training is during the (state) Police Academy through (MPTC/Municipal Police Training Council). As such we are not the ‘Keeper of Records’ for this respective information, and you must request this information through that respective agency. Items 4, 5, and 6 In response to Items 4, 5, and 6 of the request, the Department stated the following: No records found as we are not the ‘Keeper of Records’ for this information. A ‘Section 12 Form’ that is completed by an officer simply gets an individual transported to the hospital. The ‘Section 12 Form’ accompanies the individual to the facility where an evaluation is done by staff who determine admittance. There is no notification of admittance to SPD by the facility after the evaluation of the individual. Item 7 In its response to Item 7 of the request, the Department claimed Exemption (c) of the Public Records Law to withhold records responsive to the request. The Department asserted: The records requested contain medical files or information which must be withheld pursuant to this exemption. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (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. Department of Agricultural Resources, 477 Mass. 280, 292 (2017). As a result, such information must be withheld/redacted under the law. Current appeal In her appeal, Ms. Swaminathan stated the following: The records can be produced with personally identifying information redacted, thereby removing any privacy concerns raised by Exemption (c). Because the Public Records Law requires that all reasonably segregable information be disclosed and because the records can be redacted, they are not wholly exempt from disclosure under Exemption (c) and should be produced.

Ann Marie Greene SPR23/1099 Page 4 June 7, 2023 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). 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) (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. Based on the Department’s response, to the extent that the records contain medical information of an identified individual, the Department may permissibly withhold such portions from disclosure. However, the Department has not demonstrated that the records, in their entirety, contain intimate details of a highly personal nature. It is additionally uncertain whether the records are available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy.

Ann Marie Greene SPR23/1099 Page 5 June 7, 2023 Further, the Department must clarify whether segregable portions can be provided. 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 clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Swaminathan with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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. Ms. Swaminathan may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Medha Swaminathan