Laura H. Ortiz v. Lynn, City of - Police Department (SPR 20232131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2131 Captain James Flynn Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Captain Flynn: I have received the petition of Laura Ortiz appealing the response of the Lynn 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 August 21, 2023, Ms. Ortiz requested the following records: 1. Correspondence to/from City of Lynn and/or its Department regarding discussions related in any way to the Essex District Attorney Offices (EDAO) or any of the other 11 Massachusetts District Attorneys and their offices, to grant or having granted Lynn Police Departments ... immunity via Waivers issued as ‘letters’ under Carney v. City of Springfield, 403 Mass 604, 609 (1988) and Baglioni v. Chief of Police of Salem, 421 Mass 229 (1993)[;] Timeline: March 15 2021-May 15 2021[;] 2. Cover letter sent from/to the Essex District Attorney Office (EDAO) asking the City of Lynn and its Department to take over from the EDAO the investigation, or the City of Lynn/Department asking for it to take over from the EDAO the investigation, for any investigation during 2020-2021 for any of the following Lynn Police Department persons ... and including any file sheets that stated what evidence was collected and identifies what was given to the City of Lynn and its Department by the EDAO/Salem PD[.] The Department provided a response on August 31, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/2131, 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 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 James Flynn SPR23/2131 Page 2 September 21, 2023 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 August 31st Response In its August 31, 2023 response, the Department cited Exemptions (a) and (c) of the Public Records Law in support of the redactions to the requested records. 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, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 cited the Criminal Offender Record Information Act (CORI) which states in pertinent part as follows:

Captain James Flynn SPR23/2131 Page 3 September 21, 2023 Criminal offender record information (CORI) is currently defined as: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Department stated that it “. . . held back information under the statutory exemption (a). This refers to any information that is protected by the Criminal Offender Record Information Act having to do with the criminal records of the involved parties.” In light of the Department’s response, I find it is unclear how the requested records constitute CORI. Specifically, it is unclear how the requested records constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. G. L. c. 6, § 167. Consequently, the Department has not met its burden to redact portions of the requested records under the CORI Act. 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass.

Captain James Flynn SPR23/2131 Page 4 September 21, 2023 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. 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). 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, “[i]t should be noted that the department has redacted any information that would fall under exemption (c) the privacy exemption as it relates to medical files. It is our belief that medical files related to an identifiable individual are sufficiently personal in nature to warrant the exemption.” To the extent that the records contain medical information that relates to a specifically named individual, I find the Department may permissibly withhold such portions from disclosure under Exemption (c). Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Ortiz may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Captain James Flynn SPR23/2131 Page 5 September 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz