David Rigby v. Lexington, Town of - Police Department (SPR 20231836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2023 SPR23/1836 Michael A. McLean Chief of Police Lexington Police Department 173 Bedford Street Lexington, MA 02420 Dear Chief McLean: I have received the petition of David Rigby appealing the response of the Lexington 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 2, 2023, Mr. Rigby requested a copy of a specific police report. Previous appeal This request was the subject of a previous appeal. See SPR23/1718 Determination of the Supervisor of Records (August 7, 2023). In my August 7th determination, I found that the Department did not meet its burden of specificity in responding to the records request. I was subsequently made aware that Mr. Rigby had not included the Department’s complete June 5th response in his appeal. In an email received on August 8, 2023, Mr. Rigby provided the Department’s complete response and this appeal, SPR23/1836, 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 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

Chief Michael A. McLean SPR23/1836 Page 2 August 22, 2023 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 June 5th response In its June 5, 2023 response, the Department cited Exemption (c) of the Public Records Law to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Rigby states, “… I am writing to request that you open another appeal on my behalf; this time to determine whether Chief McLean’s reason for refusing to give me the police report regarding [specific individual’s] death is or is not legally valid.” 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).

Chief Michael A. McLean SPR23/1836 Page 3 August 22, 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. In its response, the Department asserted, “... Report Case# 405799: have been denied in accordance with: The Massachusetts Public Records Law, Exemption C as I believe the information clearly relates to: [t]he disclosure of personal data which may constitute and invasion of personal privacy [w]hich in this case includes specific redactions of medical privacy/personal information[.]” In camera inspection In order to facilitate a determination as to the applicability of the exemption claim made by the Department to withhold the records, the Department must provide this office with an un- redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of

Chief Michael A. McLean SPR23/1836 Page 4 August 22, 2023 the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: David Rigby