Kathleen Paulino v. Hamilton, Town of - Police Department (SPR 20231291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 28, 2023 SPR23/1291 Captain Scott G. Janes Records Access Officer Hamilton Police Department 265 Bay Road Hamilton, MA 01982 Dear Captain Janes: I have received the petition of Kathleen Paulino appealing the response of the Hamilton Police Department (Department) to her request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 7, 2023, Ms. Paulino requested “[b]ody worn camera [an identified individual] referenced in her report from 5/13/23 [identified incident number] Q-5 Comments List, Trainings, Policies and the like [an identified individual] quotes using as a norm reference.” The Department responded on June 13, 2023 and cited Exemption (c) of the Public Records Law to withhold the body-worm camera video files associated with the identified incident. G. L. c. 4, § 7(26)(c). Unsatisfied with the response, Ms. Paulino petitioned this office and this appeal, SPR23/1291, 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 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

Captain Scott G. Janes SPR23/1291 Page 2 June 28, 2023 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 custodian must provide the responsive records. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). The Department’s June 13th Response In its June 13, 2023 response, the Department cited Exemption (c) of the Public Records Law to withhold the body-worm camera video files associated with the identified incident. 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., 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.

Captain Scott G. Janes SPR23/1291 Page 3 June 28, 2023 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). 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). In its response, the Department states: The Department has identified records which are responsive to your request, however, the Department denies your request for these records pursuant to G.L. c. 4, §7, cl. 26 (c). G.L. c. 4, §7, cl. 26 (c) exempts from public disclosure “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The privacy clause of the exemption (c) protects “intimate details of a highly personal nature.” Attorney General v. Real Prop. Dept., 380 Mass. 623, 625 (1980); Torres v. Attorney General, 391 Mass. 1, 9 (1984). The Body-Worn Camera (“BWC”) video files you seek document the Department’s response to a call for a wellness check on an individual. The disclosure of these video file(s) would constitute an unwarranted invasion of the personal privacy of the subject of the call, therefore the files are not subject to public release pursuant to G.L. c. 4, §7, cl. 26 (c). Although portions of the responsive records may fall under Exemption (c), it is uncertain how the records can be withheld in their entirety. The Department must clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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).

Captain Scott G. Janes SPR23/1291 Page 4 June 28, 2023 Conclusion Accordingly, the Department is ordered to provide Ms. Paulino with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Kathleen Paulino