Joseph Rowland v. Department of State Police (SPR 20243018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 20, 2024 SPR24/3018 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Joseph Rowland appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2024, Mr. Rowland requested the following: [T]he complete electronic record of homicides investigated by state police in Suffolk County, preferably in raw csv or excel format. Please include, at minimum, the name of the victim, date of incident, and location of incident. I’d also appreciate victim demographic info, weapon/cause of death, incident number, detective assigned, suspect name and demographics, date of arrest, district, and any other field included in the electronic record. It is my understanding that state police investigates all homicides in MA besides those in Boston, Springfield, Worcester, and Pittsfield. Therefore, I am expecting there to be roughly 263 homicides in the requested dataset... In a subsequent email to the Department on October 7, 2024, Mr. Rowland clarifies that the timeline he seeks includes “from whenever MSP started recording its homicides in a computer up to the date of the request (April 10, 2024).” The Department responded on October 7, 2024, providing responsive records in redacted form. Unsatisfied with the Department’s response, Mr. Rowland petitioned this office, and this appeal, SPR24/3018, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Allison Mondello SPR24/3018 Page 2 November 20, 2024 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. 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. 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 his appeal petition, Mr. Rowland argues the following: MSP responded on October 7th with a spreadsheet of 419 death investigations assigned to MSP Suffolk County Detectives between 2014 and the present. . . . Firstly, in the provided dataset, all of the victim’s names are redacted, severely limiting the data’s usefulness. This dataset includes all death investigations, so fatal M/V accidents, overdoses, and unattended deaths are included here along with actual homicide victims. ... I will accept that specific names need to be withheld for investigatory reasons, particularly for recent homicides, and that overdose victim names can be exempt under this exemption, but I strongly disagree that G. L. c. 4, § 7(26)(c) creates a blanket exception for all homicide victim names. Secondly, the provided record is not the “complete electronic record” of homicides investigated in Suffolk County. In the week before responding, MSP asked me to clarify the period of time I want homicide data for. I repeated that I’d like the “complete electronic record,” meaning from whenever MSP started recording homicide victims on a computer to the present. Given that the provided dataset only goes back to 2014, I don't think that MSP has sent me the “complete electronic record.” . . . In summary, I am appealing MSP’s response because I disagree with their redaction of victim names, and I don’t think they sent me the “complete electronic record of homicides.”

Allison Mondello SPR24/3018 Page 3 November 20, 2024 The Department’s October 7th Response In its October 7, 2024 response, the Department provides a record entitled “Suffolk County Case Report Results” in redacted form. The Department indicates that it made numerous redactions under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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). 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 the columns of a “Redaction Log” included with its October 7th response, the Department lists “Medical” and “Privacy” as the “Reason” for the redactions, and states the

Allison Mondello SPR24/3018 Page 4 November 20, 2024 following under the “Description” column: M.G.L. c. 4, §7, cl. 26 (c). G.L. c. 4, §7 cl. 26(c), contains two distinct and independent clauses each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Analysis under the second, privacy clause is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Attorney General v. Real Prop. Dept., 380 Mass. 623, 625 (1980); Torres v. Attorney General, 391 Mass. 1, 9 (1984). Determinations must be made on a case by case basis. The privacy clause of the exemption (c) specifically protects “intimate details of a highly personal nature.” Attorney General v. Real Prop. Dept., 380 Mass. 623, 625 (1980). One’s marital status, legitimacy of children, paternity, medical condition, government assistance, substance abuse, family disputes and reputation are examples of the kinds of information the exemption was designed to protect. Id. at 626 n.2. Furthermore, the exemption will apply only where the privacy interest of the record subject outweighs the public interest in disclosure. Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979). Social security and/or license numbers fall within the exemption (c). Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 423 (1988). Based on the Department’s response, it is uncertain which redactions are for the names of homicide victims, and which redactions cover other information. It is further unclear how the redacted names of homicide victims are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the redacted information is available from other sources. PETA, 477 Mass. at 292. Also, 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. The Department must clarify these matters. Records in Existence; Possession, Custody, or Control The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Department’s response, and the information provided in Mr. Rowland’s appeal petition, it is unclear whether the Department possesses additional records responsive to the request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the

Allison Mondello SPR24/3018 Page 5 November 20, 2024 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”). Conclusion Accordingly, the Department is ordered to provide Mr. Rowland 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Rowland