Driscoll, Sean v. Falmouth, Town of - Police Department (SPR 20150143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 21,2015 SPRlS/143 Chief Edward A. Dunne Town of Falmouth-Police Department 750 Main Street Falmouth, MA 02540 Dear Chief Dunne: I have received the petition of Sean F. Driscoll ofthe Cape Cod Times appealing the response of the Town of Falmouth-Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Driscoll requested "photographs or headshots taken by the Town of all current and former Falmouth Police Department officers." You denied his request in its entirety in your written response dated December 24, 2014, claiming that the responsive records are exempt from disclosure pursuant to Exemptions (b), (c), (n), (o) ofthe Public Records Law. G. L. c. 4, § 7(26)(b), (c), (n), (o). You also cited G.L. c. 66, §1 0 ( d) in your response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Exemption (b) Exemption (b) permits the withholding of records that are: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Chief Edward A. Dunne SPR15/143 Page Two May 21,2015 related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, §7 (26)(b) In support of the Department's claim that Exemption (b) applies to the responsive records, you state that "[t]he photographic identity of police officers potentially places them at risk of harm, particularly those whoperform plain clothes or undercover operations." However, this response does not explain how the photographs are related solely to internal personnel rules and practices of the Department. As a result, I find that the Department failed to prove with specificity how the requested records may be withheld under Exemption (b). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data 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. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Based on the Department's response, 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. Torres v. Attorney General, 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The second clause protects intimate details of a highly personal nature. Real Property Dep't, 380 Mass. at 625-26; see also Georgiou v. Comm'r of the Dep't oflndustrial Accidents, 67 Mass. App. Ct. 428, 432-33 (2006). Marital status, legitimacy of children, paternity, medical condition, governmental assistance and financial information, family disputes and reputation are some examples of the kind of information the second clause is designed to protect. Real Property Dep't, 380 Mass. at 626 n.2. If a record is determined to be an intimate detail, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure ofthis information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979).

Chief Edward A. Dunne SPR15/143 Page Three May 21,2015 The Department's response states that the release of photographs of former and current police officers, particularly plain clothes and undercover officers, is "a clear unwarranted invasion of personal privacy." However, the Department failed to explain with specificity how the requested photographs constitute intimate details and whether the officers' privacy interest in the photographs outweighs the public's interest in disclosure. See Torres, 391 Mass. at 9; Real Property Dep't, 380 Mass. at 625. As a result, I find that the Department failed to prove with specificity how the requested records may be withheld under Exemption (c). Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, §7 (26)(n) Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The Department's response states that the responsive records may be withheld under Exemption (n) because you "have determined that the disclosure of photographs of police officers is likely to jeopardize their personal safety." However, the Department has failed to provide any concrete examples of how the public's safety would be jeopardized by releasing photographs of the Department's officers. As such, I find that the Department has failed to meet its burden in proving with specificity how the requested records may be withheld under Exemption (n). Exemption (o) Exemption ( o) permits the withholding of: the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those

Chief Edward A. Dunne SPR15/143 Page Four May 21,2015 categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6 G. L. c. 4, §7 (26)(o) The Department's response also claims that the responsive photographs may be withheld under Exemption ( o) and G .L. c. 66, § 10 ( d) which states that "the home address and telephone number of law enforcement. .. and any other public safety and criminal justice system personnel ... shall not be public records ...." You concede that these provisions do not specifically refer to photographs, but you "believe that the requested materials fall within the spirit and scope of the exemptions for public records." Exemption ( o) and G.L. c. 66, § 10 ( d) apply to records that contain the home address or telephone number of government employees and public safety personnel. The statutory exemptions must be narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979). As a result, I decline to extend Exemption ( o) and G .L. c. 66, § 10 ( d) to include photographs of the Department's police officers. Therefore, the Department failed to meet its burden in proving with specificity how the requested records may be withheld under Exemption (o) and G.L. c. 66, §10(d). Conclusion The Department has failed to meet its burden in proving how the requested records may be withheld, in their entirety, under Exemptions (b), (c), (n), ( o) and G.L. c. 66, § 10 ( d). Access to a record requested pursuant to the Public Records Law rests on the content of the record. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department's response fails to differentiate the responsive photographs based on their content; instead it offered a blanket denial of access to the requested records. Accordingly, the Department is hereby ordered, within ten (1 0) days of this order, to provide Mr. Driscoll with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten 0) days, provide to Mr. Driscoll a written explanation, with specificity, how a particular exe tion applies to each record. cc: Mr. Sean F. Driscoll