Chris McCann v. Barnstable, Town of - Police Department (SPR 20231536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2023 SPR23/1536 Danielle Paradis Records Supervisor Barnstable Police Department 1200 Phinney’s Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Chris McCann appealing the response of the Barnstable 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 July 3, 2023, Mr. McCann requested copies of two specific 911 calls. The Department provided a response on July 3, 2023. Unsatisfied with the response, Mr. McCann petitioned this office and this appeal, SPR23/1536, 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 July 3rd response In its July 3, 2023 response, the Department provided Mr. McCann with two redacted 911 audio recordings. The Department cited Exemptions (a), (c) and (f) of the Public 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

Danielle Paradis SPR23/1536 Page 2 July 18, 2023 Law in support of its redactions. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Department stated the following “…because social security numbers and driver’s license numbers fall within the definition of ‘personal information’ and are protected from disclosure as such pursuant to G.L. c. 93H, that information was redacted and properly withheld pursuant to exemption (a) of G.L. c. 4, sec. 7(26) and G.L. c. 93H. Exemption (a) allows records to be withheld if there is a statute that exempts that information from disclosure, either specifically or by necessary implication.” Upon review, I find that social security numbers and driver’s license numbers may be withheld under G. L. c. 93H, as it operates through Exemption (a) of the Public Records Law. 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

Danielle Paradis SPR23/1536 Page 3 July 18, 2023 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. School 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. 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. In its response, the Department stated the following: Please be advised that the Department redacted dates of birth, witness names and addresses, as well as a personal phone number and medical information pursuant to exemption (c) of G.L. c. 4, sec. 7(26)…[.] Home addresses and personal phone numbers are sufficiently personal in nature to implicate an individual’s privacy rights. As cell phone numbers are typically not easily ascertainable by the public, an individual has a significant interest in maintaining the privacy of their cell

Danielle Paradis SPR23/1536 Page 4 July 18, 2023 phone numbers. The public disclosure of an individual’s personal information may result in personal security issues for those individuals who have a considerable privacy interest in their identities, addresses, and telephone numbers, which is not substantially outweighed by the public interest in releasing that information. Based on the Department’s response, to the extent that the records contain medical information of a specifically named individual, the Department may permissibly withhold such portions from disclosure. Also, the Department may permissibly withhold personal phone numbers under Exemption (c). However, the Department has not demonstrated that the dates of birth and home addresses are intimate details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of that information is available from other sources. PETA, 477 Mass. at 292. The Department must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979); Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its response, the Department stated the following: …to the extent that exemption (c) is not deemed sufficient to protect from disclosure the names and personal information of a witness involved in the matter, we believe that exemption (f) of G.L. c. 4, sec. 7(26) would apply to protect that information…[.] As witness-provided information is essential to efficient and

Danielle Paradis SPR23/1536 Page 5 July 18, 2023 effective law enforcement, the exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Upon review, I find the Department has met its burden to withhold the identity of a voluntary witness contained in the responsive records under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. McCann with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. McCann 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: Chris McCann