Patten, Esq., Edward v. Provincetown, Town of (SPR 20140095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 28,2014 SPR14/095 Mr. Edward Patten, Esq. 828 Main Street P.O. Box 2031 Dennis, MA 0263 8 Dear Attorney Patten: This office has received your petition on behalf of your client, appealing the response of the Town of Provincetown (Town) to your client's request for records. Specifically, your client requested a copy of the appendices and exhibits related to a document called the "Marcum Report". See G. L. c. 66, § 10(b) (authority of Supervisor ofPublic Records to resolve public records appeals); see also 950 C.M.R. 32.08(6) (appeals process and in camera inspections). To aid in our review and determination of the exemption claims, I ordered the Town to provide this office with a copy of the exhibits that were withheld for an in camera review. See 950 C.M.R. 32.08(6). The Town complied and provided the documents to this office, which will be returned to the Town's Legal Counsel, under separate cover. I wish to thank the Town for its cooperation. "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The statutory exemptions are strictly and narrowly construed. Globe Newspaper Co. v. Dist. Att'y for the Middle Dist., 439 Mass. 374, 380 (2003); Att'y Gen. v. Ass't Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Exemption (c) Exemption (c) serves to exempt from public disclosure: personnel and medical files or information; also any other materials or data OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Edward Patten, Esq. SPR14/095 Page Two May28, 2014 relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co., 388 Mass. at 432-34. Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Real Property Dep't, 380 Mass. at 625; Torres v. Attorney General, 391 Mass. 1, 9 (1984). Therefore, determinations must be made on a case by case basis. The second clause only protects intimate details of a highly personal nature. Real Property Dep't, 380 Mass. at 625; see also Georgiou v. Cornrn'r of the Dep't oflndustrial Accidents, 67 Mass. App. Ct. 428, 432 (2006). Marital status, legitimacy of children, paternity, medical condition, governmental assistance, family disputes and reputation are some examples of the kind of information the second clause is designed to protect. Real Property Dep 't, 3 80 Mass. at 626 n.2. (emphasis added) Application of the second clause of the privacy exemption requires a balancing between any claimed invasion of privacy and the public's interest in disclosure. In re Subpoena Duces Tecum, 445 Mass. 685, 688 (2006) (emphasis added). Where the public interest in acquiring information significantly outweighs the seriousness of any invasion of privacy, the private interest in precluding disclosure must yield to the public interest. Id. In identifying the existence of privacy interests, the factors for consideration include: whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials sought contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. Id.; see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). The test of whether the information requested rises to the level of an unwarranted invasion of privacy rests on whether disclosure of the information would embarrass the reasonable person or whether it is the type of information that the average person might not share with others. During discussions with this office while reviewing the exhibits in camera the Town's Legal Counsel stressed that there were portions of the exhibits that if released to the public might damage the reputation of the individuals who are the subjects of the records. After a careful review of the exhibits, I agree. Therefore, I find that the Town has properly redacted portions of the exhibits pursuant to the second clause of Exemption (c).

Mr. Edward Patten, Esq. SPR14/095 Page Three May 28,2014 Exemption (a) Our review of the exhibits reveals that certain records are exempt from disclosure pursuant to the State Ethics Commission Statute as it operates through Exemption (a) of the Public Records Law. That statute states, in pertinent fact: ... All commission proceedings and records relating to a preliminary inquiry or initial staff review to determine whether to initiate an inquiry shall be confidential .... G. L. c. 268A Portions of the responsive records related to any such inquiry are exempt from disclosure by Statute, and have been properly withheld by the Town pursuant to G. L. c. 268A as it operates through Exemption (a). Exemption (f) Our review has also revealed that individuals who are the subjects of some of the exhibits are complainants and witnesses to the incident(s) described in the Marcum Report. The Town redacted or withheld portions of the records that would identify any complainants or witnesses, Pursuant to Exemption (f) of the Public Records Law. Exemption (f) allows the custodian to withhold: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f) Exemption (f) allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). A custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records, by offering specific proof that the documents are of a type for which an exemption applies. Flatley, 419 Mass. at 512.

Mr. Edward Patten, Esq. SPR14/095 Page Four May 28,2014 There are certain categories of information, however, that a law enforcement agency may withhold without demonstrating prejudice to investigative efforts. For example, an investigative agency does not have to demonstrate prejudice to withhold the identities of witnesses, victims, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). The exemption is designed to allow investigative officials to provide an assurance of confidentiality to individuals who come forward with information so that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Any details in the records which if released would create a risk of identifying an individual who is a victim, or who comes forward as a witness, are indefinitely exempt. Globe Newspaper Co., 388 Mass. at 438. I find, therefore, that the Town acted properly in redacting portions of the responsive record that would identify voluntary witnesses. Status of the Requester You stated in your letter to this office and in conversations with an attorney on my staff that you was sought copies of the responsive records to assist your client in a litigation matter. Please note that your client's status as an individual who may have an interest in the subject matter of the records does not provide him with any greater right of access than any other individual in the public realm. The Public Records Law does not distinguish between requesters. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requesting party or parties. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for you to seek access to the responsive records through the judicial process given that un-redacted copies of the records may be available to you through discovery. It is my understanding that on May 12, 2014, the Town Counsel had a discussion with you and released the exhibits to you in a redacted format pursuant to the exemptions claimed by the Town and discussed in this determination. I also understand that the Town waived all costs that could have been assessed in accordance with the Public Records Access Regulations. See 950 C.M.R. 32.00.

Mr. Edward Patten, Esq. SPR14/095 Page Five May 28,2014 Accordingly, whereas the Town has released the records in redacted format and further whereas I find the redactions were performed in a manner consistent with the Public Records Law, this administrative appeal is now closed. Supervisor of Records cc: Mr. Darren Klein, Esq.