Emma Rindlisbacher v. Spencer, Town of - Police Department (SPR 20242419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2024 SPR24/2419 Sergeant Randy M. Berg Records Access Officer Spencer Police Department 9 West Main Street Spencer, MA 01562 Dear Sergeant Berg: I have received the petition of Emma Rindlisbacher appealing the response of the Spencer 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 August 22, 2024, Ms. Rindlisbacher requested, “[c]opies of all police reports related to [identified individuals] or [identified address] from January 1, 2020 to August 22, 2024.” Prior Appeal This request was the subject of a prior appeal. See SPR24/2419 Determination of the Supervisor of Records (September 10, 2024). In my September 10th determination, I requested that the Department provide this office with an un-redacted copy of the responsive records for in camera review. On September 10, 2024, the Department provided the records. I thank the Department for its cooperation. 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 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

Sergeant Randy M. Berg SPR24/2419 Page 2 October 23, 2024 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 Department’s August 23rd Response In its August 23, 2024 response, the Department identified one report and three logs responsive to the request. The Department provided two logs with redactions and withheld one log pursuant to Exemption (a) and specifically G. L. c. 41, § 97D. Further, one report was withheld pursuant to Exemption (j) of the Public Records Law. The Department cited Exemptions (a), (c) and (j) of the Public Records Law in support of the redactions and withholding of requested records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Department cited G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be

Sergeant Randy M. Berg SPR24/2419 Page 3 October 23, 2024 maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. In its response, the Department withheld log #677763 and stated, “Exemption (a) applies to records that are ‘specifically or by necessary implication exempted from disclosure by statute’.” 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). 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. 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., 388 Mass. at 438. 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). 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).

Sergeant Randy M. Berg SPR24/2419 Page 4 October 23, 2024 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. In its response the Department recited the statute and stated, “[l]og #681999 has one line redacted as required by Exemption (c).” Exemption (j) Exemption (j) allows records custodians of firearm records to withhold: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefor, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards. Exemption (j) allows the identifying data, in particular, the name and address of the licensee to be deleted from the record prior to disclosure. In addition to Exemption (j), there are other statutes that govern the release of firearms records. In its response, the Department recited the statute and stated, “[t]he records requested contain information implicated [in the statute] [and] such information must be withheld under the law.” In camera review Upon in camera review of the responsive records, with regard to the withheld records, I find that the Department has met its burden to withhold the records under Exemptions (a) and (j) of the Public Records Law. Further, with regard to the redacted records, I find that the Department has met its burden to redact personal and medical information under Exemption (c). However, I find that the Department has not met its burden to redact dates of birth under Exemption (c). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide a response to Ms. Rindlisbacher, in a manner consistent with the Public Records Law, its Regulations and this order 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. Ms. Rindlisbacher

Sergeant Randy M. Berg SPR24/2419 Page 5 October 23, 2024 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: Emma Rindlisbacher