Good Citizen v. Greenfield, City of - Police Department (SPR 20242010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2010 Jeffrey Bengston, Esq. Court Administrator Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Attorney Bengston: I have received the petition of “Good Citizen” (Requestor) appealing the response of the Greenfield 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 July 12, 2024, the requestor sought “any and all records, reports, calls, dispatches, radio transmissions related to any incidents on or near country club road between 4pm Tuesday 7/9/24 and 6 am Wednesday 7/10/24.” The Department responded on July 15, 2024. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR24/2010, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Jeffrey Bengston, Esq. SPR24/2010 Page 2 July 29, 2024 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. Current Appeal In the appeal petition, the requestor contends that the Department has not met its burden to withhold records in their entirety, stating that the records “can be redacted to make sensitive information unavailable to recipients[.]” The Department’s July 15th Responses In its June 15, 2024 response, the Department cited Exemption (c) of the Public Records Law to withhold the requested records in their entirety. 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 may be 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. 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). 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).

Jeffrey Bengston, Esq. SPR24/2010 Page 3 July 29, 2024 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). When analyzing a privacy claim, there is 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 July 15, 2024 response, under Exemption (c), the Department states: This request is being denied in accordance with Exemption [(c)] – Personal data the disclosure of which may constitute an invasion of personal privacy is not a public record. In general, it is an invasion of personal privacy under M.G.L. c. 214, sec. 1B, as appearing in St. 1973, c 1114, sec. 62, to disclose personal data where such disclosure will result in an unreasonable, substantial or serious interference with the privacy of a data subject unless the data subject or his authorized representative consents to such disclosure. Following the opening of this appeal, in an email to this office and the requestor, also dated July 15, 2024, the Department stated the following: [The] requestor stated in a separate request for the same information via our online portal, that they were looking for calls relative to breaking and entering into motor vehicles . . . . He was advised no such calls existed. Requestor then duplicated his request via the records email (who was not aware of the online request already responded to . . .). The records clerk responded with this denial, of which I followed up, and informed requestor that the only call was a medical call. The Department has not met its burden to withhold the responsive records, in their entirety, pursuant to Exemption (c). Based on the Department’s response, in conjunction with the information provided in its July 15, 2024 email to this office and the requestor, it is unclear which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold from disclosure under Exemption (c). See G. L. c. 66, § 10(b)(iv) (a 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 exemption or exemptions upon which the withholding is based”). Where the Department indicated in its July 15, 2024 email to this office and the requestor that it “informed requestor that the only call was a medical call[,]” I find that to the extent the

Jeffrey Bengston, Esq. SPR24/2010 Page 4 July 29, 2024 records contain medical information of a specifically identified individual, such portions can be withheld under Exemption (c). However, it is unclear how Exemption (c) could apply to withhold the records in their entirety. The Department must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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 nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Moreover, the Department has not explained how the records contain intimate details of a highly personal nature or how disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. The Department also did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Good Citizen