Ian Davis v. Worcester County District Attorney's Office (SPR 20233082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/3082 Mark Relation, Esq. Assistant District Attorney Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Attorney Ian Davis appealing the response of the Worcester County District Attorney’s Office (Office) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2023, Attorney Davis requested: [1.] All reports related to [a named individual] from his arrest on June 23, 2023; [2.] All photographs and videos related to [a named individual], including but not limited to those from booking and the holding cell at the Sterling Police Office; and [3.] All witness interviews[.] Prior appeal This request was the subject of a previous appeal. See SPR23/2995 Determination of the Supervisor of Records (December 26, 2023). In my December 26th determination, I found that it was unclear if the Office possessed any records responsive to the request. On December 19, 2023, the Office responded. Unsatisfied with the Office’s response, the requestor petitioned this office and this appeal, SPR23/3082, 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 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

Mark Relation, Esq. SPR23/3082 Page 2 January 4, 2024 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 Office’s December 19th Response In its December 19, 2023 response, the Office cited Exemption (c) of the Public Records Law to redact a video footage. Current appeal In his appeal, Attorney Davis states, “[g]iven that it is well established that [a named individual] died of opioid overdose, his treatment or lack thereof at the hands of public servants is a matter of great public concern… my position would be that these redactions be strictly construed so as to only excise the actual moment of [a named individual]’s death. Surely, nearly wholesale redactions of nearly the entire relevant time period has nothing to do with protecting the privacy interests of [a named individual]. At most, the actual several minutes of each of the three files depicting his death should be redacted.” 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. Examn’r, 404 Mass. 132, 135 (1987).

Mark Relation, Esq. SPR23/3082 Page 3 January 4, 2024 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. Under Exemption (c), the Office states, “[the Office] has an obligation to protect the privacy of persons named in the documents. Therefore, the public file does not include witness names, dates of birth, social security numbers, telephone numbers, residential addresses, video or images of a person’s last moments, motor vehicle registrations and other personal identifying information.” The Office’s response did not did not contain the specificity required in a denial of access to public records. Based on the School’s response, it is unclear how the redacted portions of the records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. As a result, I find that the Office did not meet its burden of specificity in redacting the records under Exemption (c) of the Public Records Law.

Mark Relation, Esq. SPR23/3082 Page 4 January 4, 2024 Conclusion Accordingly, the Office is ordered to provide Attorney Davis 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 the 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. Attorney Davis may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ian Davis, Esq.