Kieran Bell v. University of Massachusetts - Lowell (SPR 20250484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0484 Shelly Thrasher Chief of Police University of Massachusetts Lowell Police Department 220 Pawtucket Street Lowell, MA 01854 Dear Chief Thrasher: I have received the petition of Kieran Bell appealing the response of the University of Massachusetts Lowell Police Department (Department/UMLPD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2024, Mr. Bell requested copies of any CCTV or bodycam footage that may have recorded an incident on 3/20/2024 involving a student being tackled and cuffed. Previous Appeals and In camera Review This request was the subject of previous appeals and an in camera inspection. See SPR24/2838 Determination of the Supervisor of Records (October 25, 2024) and SPR24/3120 Determination of the Supervisor of Records (December 2, 2024 and January 6, 2025). In my January 6th determination, following in camera inspection of the record, I found that the Department had not met its burden to withhold the requested record under Exemption (n). The Department responded on January 13, 2025, citing Exemption (c) of the Public Records Law for withholding the responsive record. Unsatisfied with the response, Mr. Bell petitioned this office and this appeal, SPR25/0484, 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). 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 Shelly Thrasher SPR25/0484 Page 2 February 28, 2025 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. The Department’s January 13th Response In its January 13, 2025 response, the Department cites Exemption (c) of the Public Records Law to withhold the responsive 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 is 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. Id. 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 Shelly Thrasher SPR25/0484 Page 3 February 28, 2025 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. Under Exemption (c), the Department states: While exemption (n) protects the confidentiality of camera placement at the campus, exemption (c) protects the privacy of the individual on the tape (the requester here). We have allowed the requester to review the video (and he has). Our concern is once the video is released, it is a public record. So, we ask that your office further review the video in camera pursuant to the privacy exemptions provided by exemption (c) because given the medical nature of the record, as well as the obvious balancing test / privacy implications demonstrated by the contents of the record, it should be withheld from the public - especially given the circumstances here (where the requester has already been allowed to review the record). Based on the Department’s January 13th response, and in conjunction with my previous in camera review of the responsive record, although portions of the record my fall within Exemption (c), it is unclear how the record can be withheld in its entirety under Exemption (c) of the Public Records Law. The Department must explain whether the record can be redacted so that segregable portions can be 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). Conclusion Accordingly, the Department is ordered to provide Mr. Bell 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.

Chief Shelly Thrasher SPR25/0484 Page 4 February 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Kieran Bell