Mass Accountability Network v. Lynn, City of - Police Department (SPR 20250780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2025 SPR25/0780 Lieutenant Robert Avery Records Access Officer Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Avery: I have received the petition of Mass Accountability Network (requestor) appealing the response of the Lynn 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 March 5, 2025, the requestor sought “all BWC from the initial officers arriving on scene and [a named individual]’s BWC from the incident that occurred on October 19, 2023, for the execution of search warrant, which resulted in the suspension of [the named individual] for 5 days on February 13th, 2025.” The Department responded on March 13, 2025. Unsatisfied with the Department’s response, the requestor petitioned this office, and this appeal, SPR25/0780, was opened as a result. Subsequent to the opening of this appeal, in a letter to the requestor and this office on March 25, 2025, the Department provided a further response. 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 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

Lieutenant Robert Avery SPR25/0780 Page 2 April 2, 2025 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 March 13th and March 25th Responses In its March 13, 2025 response, the Department cites Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c). In its March 25, 2025 response, the Department further elaborates on its claims under Exemption (c), and explains that one of the officers “does not have a BWC per Lynn Police Department BWC policy.” 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).

Lieutenant Robert Avery SPR25/0780 Page 3 April 2, 2025 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 its March 13th response, under Exemption (c), the Department argues the following: After careful review of this request, it is determined that no portion of this call is public records as it has intimate details about the subjects past and present substance abuse issues and current need for medical response. This information is being withheld under the second clause of the Privacy Exemption “C” of the Massachusetts Public Record Law. The incident contains intimate details of a highly personal nature, substance abuse. It is not possible to redact the personal information of the subjects need for assistance, and specifically medical assistance, and sufficiently warrants this exemption. The disclosure of this would constitute an unwarranted invasion of personal privacy for the subject the Department feels the privacy interests of the subject outweigh the public interests in the disclosure of that information. In making this determination, the department has considered the following factors: (1) whether the disclosure would result in personal embarrassment to an individual of normal sensibilities; and (2) whether the material sought contain intimate details of a highly personal nature. In its March 25th response, the Department further argues the following: - [The Department] believe[s] the medical aspect is most certainly and appropriately cited as the medical necessity arose from the subject’s digestion of illegal narcotics. The subject was not treated for any injuries sustained from being punched and did not complain of any injury or request treatment which is noted in the POST Commission findings. The subject was only treated for medical necessity for the narcotics and therefore should be shielded under the medical exemption. - Exemption C is also appropriate as the subject had to be triaged immediately and in the process of the arrest received medical treatment at the same time. The Lynn Police Department believes this is an undeniable violation of the subject’s medical privacy. - [The officer]’s POST Commission findings are clearly attainable and provide the transparency for this incident without providing the subject’s private medical history and treatment. - It is the belief of the Lynn Police Department that although this was initiated as a drug enforcement operation it quickly became a medical event which is most certainly a private matter. The Department is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an

Lieutenant Robert Avery SPR25/0780 Page 4 April 2, 2025 ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court in Mack held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. The Court in Mack explained that “the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption.” Id. at 12. In this case, where the requested records appear to be related to an investigation into the use of force by a law enforcement officer, I find the Department has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Department has not met its burden to withhold the records pursuant to Exemption (c) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide the requestor 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: Mass Accountability Network