Blue POV v. Salem, City of - Police Department (SPR 20232290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2290 Anne Marie Greene Principal Clerk Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Blue POV appealing the response of the Salem 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 May 7, 2023, the requestor sought “a list of all detainments and/or people that were put into protective custody. From October 1st to November 1st 2022.” Previous Appeal This request was the subject of a previous appeal. See SPR23/1166 Determination of the Supervisor of Records (June 14, 2023). In my June 14th determination, I ordered the Department to provide the requestor with a response to the request. On August 21, 2023, the Department responded. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR23/2290, 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 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

Ann Marie Greene SPR23/2290 Page 2 October 10, 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. 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 August 21st Response In its August 21, 2023 response, the Department provided the requested records with redactions made pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The Department states: [T]he reports have been redacted per [Exemption (c)] due to the sensitive nature of these records as a medical file due to all parties involved being detained and placed in protective custody due to intoxication and the inability to care for oneself. Per your request of obtaining ‘all detainees and or people put into protective custody’ the applicable reports are being provided though with all involved parties names/identities redacted as the disclosure of their identity may constitute an unwarranted invasion of personal privacy by sharing their wellbeing which was noted by all reporting officers as intoxicated and the inability to care for oneself at the time of the incident (which is deemed medical in nature) and as such resulted in them being placed into protective custody. In a further response provided to this office dated September 26, 2023, the Department states: The department did initially deny the requestor the records based on Exemption C. We felt that since these records involved individuals placed into protective custody for incapacitation due to alcohol, these were medical issues, and not criminal justice ones. This has been the longstanding practice of the [Department] to not provide records which could reveal the identity of a person wo suffers from substance abuse disorder, which would include alcohol….[C]itizens were quite upset when their names, or those of loved ones, were read in the news as it pertained to their incapacitation due to alcohol. Blue POV filed an appeal, and your office found that we did not meet our burden for denying the set of records. Due to recent appeals, the changing records landscape, and speaking with my colleagues regarding the issue, the decision was made to provide the reports, but withholding then [sic] name of the individuals involved. The purpose of this was to save the individual from embarrassment, and

Ann Marie Greene SPR23/2290 Page 3 October 10, 2023 to prevent any issues with revealing medical information. By including names, even of others involved, it is possible that someone could trace back the individual who was placed into protective custody. Blue POV was provided with reports but with the names redacted. I truly believed that this was in the spirit of transparency, provided the outlet with relevant information, and also protected individuals affected by substance abuse disorder. This was a more reasonable direction as opposed to continuing to try to justify denying the full record. We only place persons into protective custody for incapacitation due to alcohol, not simply being intoxicated. This indicates a certain level of problematic drinking. It is used to protect the individual, and the general public from harm. It is policy that whenever someone is placed into PC, the booking officer must make a call to a detox facility. That points to the belief that this should be considered a medical issue and not an arrest which would be subject to additional disclosure. In the cases a treatment facility is available, the department will arrange to get that person there. I have included some of the language from my agency’s police (Chapter 100.0). If the identity of the individuals become known, there could be serious adverse effects to their employment, housing, insurance, and reputation. The abuse of alcohol is a serious, nationwide public health problem. The compulsive use of alcohol has an adverse effect not only on the alcoholic but also on their families, their employees, and the community as a whole. In an attempt to resolve this long-standing problem, Massachusetts’s law provides that public intoxication is not a crime. Alcoholism is a disease. By [statute] detoxification facilities and related programs are provided for the treatment and rehabilitation of persons suffering from alcoholism. The law also provides for the protective custody of persons incapacitated from consuming alcohol. A person who is incapacitated from drugs alone does not fall under the provisions of this law. A person who has been taken into protective custody is not considered to have been arrested or charged with a crime. Current Appeal In its appeal, the requestor argues: [The Department] sent a PDF (which is attached to this email) and it was heavily redacted with no explanation on why. My original complaint was…filed because they filed for an exemption for privacy reasons on all the people taken into “protective custody”, which was found to be open to public records and they still

Ann Marie Greene SPR23/2290 Page 4 October 10, 2023 redacted all the information. Your office told the Salem police department to send their response to your office as well, which I believe they have failed to do also. 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. 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).

Ann Marie Greene SPR23/2290 Page 5 October 10, 2023 Based on the Department’s response, I find that to the extent the records contain medical information of a specifically identified individual, the Department may withhold such portions from disclosure. However, I find the Department has not met its burden of specificity to redact certain information from the responsive records under Exemption (c). Specifically, it is unclear how the Department can redact the race, sex, date of birth, address, and “op state & no.” under Exemption (c). It is uncertain how this information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. Further, the Department must provide additional information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Blue POV