Shelby Lee v. Easthampton, City of - Police Department (SPR 20232411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2411 Chief Robert Alberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Alberti: I have received the petition of Shelby Lee appealing the response of the Easthampton Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 15, 2023, Shelby Lee requested the following: 1. All narratives and related reports connected to and including, but not limited to, Fire Department run number FD 22-1783-IN. 2. Dispatch log and recordings from 7/8/22 21:30 - 7/9/22 1:30. On August 29, 2023, the Department responded and provided responsive records for Item 1 of the request. On September 11, 2023, the Department indicated that it was withholding records responsive to Item 2 of the request, pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Shelby Lee petitioned this office and this appeal, SPR23/2411, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, 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 Robert Alberti SPR23/2411 Page 2 October 24, 2023 including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s August 29th and September 11th responses In its August 29, 2023 response, the Department provided responsive records to Item 1 of the request. On September 11, 2023, the Department withheld responsive records to Item 2 of the request pursuant to Exemptions (a) and (c). 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, 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. Under Exemption (a), the Department cites the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and states the following: [T]he City of Easthampton’s position remains that the records requested in Item 2 are exempt from disclosure under G.L. c.4, §7(26)(a) and (c). G.L. c.4, §7(26)(a) exempts records that are “specifically or by necessary implication exempted from disclosure by statute.” The responsive records, aside from the dispatch log(s) that have been previously provided, contain protected health information and may not be disclosed to the public under 45 CFR §164.502(a).

Chief Robert Alberti SPR23/2411 Page 3 October 24, 2023 The applicable regulation is part of the implementation of HIPAA, and provides in relevant part: Definitions. . . . Covered entity means: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. . . . Health plan means an individual or group plan that provides, or pays the cost of, medical care. . . . (2) Protected health information excludes individually identifiable health information: . . . (iii) In employment records held by a covered entity in its role as employer 45 C.F.R. § 160.103. The Department must clarify how it is a covered entity as defined by HIPAA. Also, it is unclear how the records in their entirety would constitute protected health information under HIPAA. The Department must clarify this matter. 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). 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

Chief Robert Alberti SPR23/2411 Page 4 October 24, 2023 (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. Under Exemption (c), the Department stated: The requested records are personal and medical files or information relating to a specific individual, and the disclosure of these records would constitute an unwarranted invasion of personal privacy. As such, the records are exempt from disclosure under G.L. c.4, §7(26)(c). Analysis under Exemption (c) requires a balancing of the public’s right to know against the relevant privacy interests at stake. In this case, the privacy interests at stake significantly outweigh the public interest, if any, in receiving this information. To the extent that the requested records contain medical information of a specifically named individual, the Department may permissibly withhold those portions from disclosure. However, it is unclear how the Department cannot redact personal and medical information from the responsive records. See 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). The Department must explain why segregable portions cannot be provided. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific

Chief Robert Alberti SPR23/2411 Page 5 October 24, 2023 exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Therefore, the Department must identify the records it has in its possession that it withheld under Exemptions (a) and (c). Conclusion Accordingly, the Department is ordered to provide Shelby Lee 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 the response to this office at pre@sec.state.ma.us. Shelby Lee 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: Shelby Lee