Denise Leboeuf v. South Worcester County Communications Center (SPR 20243159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3159 Gregory Lynskey Communications Center Director South Worcester County Communications Center 357 Main Street Webster, MA 01570 Dear Director Lynskey: I have received the petition of Denise Leboeuf appealing the response of the South Worcester County Communications Center (Center) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2024, Ms. Leboeuf sought recordings of 911 calls placed by a named individual on November 6, 2021, and July 2, 2022. The Center provided responses on September 27, 2024 and November 12, 2024. Unsatisfied with the Center’s responses, Ms. Leboeuf petitioned this office and this appeal, SPR24/3159, 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. 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. 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

Gregory Lynskey SPR24/3159 Page 2 December 5, 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Leboeuf’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Center’s September 27th and November 12th Responses In its September 27, 2024 response, the Center informed Ms. Leboeuf that copies of the requested records were available for pickup. In a November 11, 2024 email to the Center, Ms. Leboeuf objected to redactions made to the responsive records, and informed the Center that she was seeking the responsive records for use in litigation. In its initial November 12, 2024 response, the Center informed Ms. Leboeuf that if the records were being sought for use in court, they should be requested through court processes. The Center stated that it had redacted “confidential information,” but expressed its willingness to provide unredacted records to the court in the course of litigation. Subsequently on November 12, 2024, in response to further objections by Ms. Leboeuf, the Center stated that it had redacted the responsive records “… where the caller states specific information regarding [Ms. Leboeuf’s] complaint that [she] filed in which the attorney expressed that it was a confidential complaint.” Current Appeal In her November 22, 2024 petition to this office, Ms. Leboeuf reiterates her objection to the redactions made to the responsive records. Specifically, Ms. Leboeuf states that the related complaint is not confidential, and does not constitute grounds to redact any portion of the requested records. In an email communication to this office on November 22, 2024, the Center clarified that the redactions made to the responsive records pertain to the personal phone numbers of a private individual, and the personal medical information of a specifically named individual.

Gregory Lynskey SPR24/3159 Page 3 December 5, 2024 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. 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). 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. Based on the Center’s response, and where the responsive records contain the personal medical information of an identified individual and the personal phone number of a private individual, the disclosure of which would constitute an unwarranted invasion of personal privacy, I find that the Center has met its burden to redact the responsive records under Exemption (c).

Gregory Lynskey SPR24/3159 Page 4 December 5, 2024 Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Leboeuf is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Denise Leboeuf