Carrie Girstantas v. Franklin, Town of - Police Department (SPR 20231207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2023 SPR23/1207 Kristin Gutauskas Donovan Records Access Officer Franklin Police Department 911 Panther Way Franklin, MA 02038 Dear Ms. Donovan: I have received the petition of Carrie Girstantas appealing the response of the Franklin 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 June 1, 2023, Ms. Girstantas requested “the phone recording of the 911 call and/or the report that emergency services were dispatched” of an identified incident. On June 1, 2023, the Department responded and stated that it was withholding the requested records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Ms. Girstantas petitioned this office and this appeal, SPR23/1207, 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(d)(iv) (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…”); 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). 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

Kristin Gutauskas Donovan SPR23/1207 Page 2 June 21, 2023 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 June 1st Response In its June 1, 2023 response, the Department cites Exemptions (c) of the Public Records Law to withhold the responsive records. 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 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., 391Mass. 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 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. 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).

Kristin Gutauskas Donovan SPR23/1207 Page 3 June 21, 2023 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). The Department asserts: After careful review of the details of the call it is determined that no portion of this call is public record and has intimate details about an individual’s past and present mental health condition, and current need for medical response. This information is being withheld under the second clause of the Privacy Exemption c of the MA Public Record Law. This call contains intimate details of a highly personal nature; substance abuse. It is not possible to redact the personal information of the victim’s need for assistance; the call is strictly that and a request for medical assistance. Overdose information is considered medical information and sufficiently warrants this exemption. There is no paramount interest in public disclosure. To the extent that the records contains medical information of a specifically identified individual, I find the Department may withhold these portions from disclosure. However, it is unclear how the Department cannot redact medical information from the responsive recordings. Further, the Department has not demonstrated that the records, in their entirety, are intimate details of a highly personal nature. Particularly, it is unclear how background noises, dates of birth, statements from the dispatcher within the 911 audio recording, date, time of dispatch, time arrived or time closed, are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Conclusion Accordingly, the Department is ordered to provide Ms. Girstantas with a response to her request 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 the response to this office at pre@sec.state.ma.us. Ms. Girstantas 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: Carrie Girstantas