Denise Leboeuf v. Webster, Town of - Police Department (SPR 20242209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2024 SPR24/2209 Chief Michael Shaw Chief of Police Webster Police Department 357 Main Street Webster, MA 01570 Dear Chief Shaw: I have received the petition of Denise Leboeuf appealing the response of the Webster 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 19, 2024, Ms. Leboeuf requested body camera footage of a specified incident that took place on July 16, 2024. Previous Appeal This request was the subject of a previous appeal. See SPR24/2120 Determination of the Supervisor of Records (August 5, 2024). In my August 5th Determination, I learned the Department provided Ms. Leboeuf with a supplemental response on July 29, 2024. Unsatisfied with the Department’s response, Ms. Leboeuf petitioned this office and this appeal, SPR24/2209, 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

Chief Michael Shaw SPR24/2209 Page 2 August 16, 2024 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In her appeal to this office, Ms. Leboeuf states, “[C]hief Shaw is making decisions for me. He is trying to make a claim that he can make a decision for me about whether I should have the footage.” The Department’s July 29th Response In its July 29, 2024 response, the Department states that it denied the request based on “Exemption C, as this call was a medical one…” 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).

Chief Michael Shaw SPR24/2209 Page 3 August 16, 2024 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. Under Exemption (c), in its July 29th response, the Department argues, “[w]hile I understand Ms. LeBeouf is requesting a copy of her own section, the call did involve Webster Paramedics and some of that information I believe may not be privy to a public records request.” To the extent that the record contains medical information related to a specifically named individual, the Department may withhold such portions from disclosure. However, it is uncertain how the record, in its entirety, constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the Department did not provide 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. PETA, 477 Mass. at 292. Additionally, it is unclear how the record cannot be redacted and non-exempt portions provided. 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 clarify these matters. Conclusion Accordingly, the Department is ordered to provide a response to Ms. Leboeuf 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: Denise Leboeuf