K.C. Myers v. Brewster, Town of - Town Administrator (SPR 20160299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 27,2016 SPR16/299 Ms. Sarah A. Turano-Flores, Esq. Nutter McClennen & Fish, LLP 1471 Iyannough Road P.O. Box 1630 Hyannis, MA 02601-1630 Dear Attorney Turano-Flores: I have received the petition ofK. C. Myers of the Cape Cod Times appealing the response of the Town of Brewster (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Myers requested a copy of the "entire video of the November 16, 2015 Special Town Meeting including the after-gavel comments allegedly made by the Town Moderator." The Town denied Ms. Myers request related to the portion of the video that contained "after-gavel comments" pursuant to Exemption (c) ofthe Public Records Law, and Ms. Myers appealed. 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, § 1 0(c ); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Previous appeal and determination This request was the subject of a previous appeal. See SPR16/173 Determination of the Supervisor of Records (March 23, 2016). In my prior determination, I found that the Town had not met its burden of supporting the Exemption (c) claim, and ordered the Town to provide Ms. Myers with a detailed written response within ten (10) days. On April1, 2016, the Town OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Sarah A. Turano-Flores, Esq. SPR16/299 Page 2 May 27,2016 provided Ms. Myers with a written response to support its Exemption (c) claim, and Ms. Myers appealed this response. Exemption (c) Your April 1 letter informed Ms. Myers that the Town will withhold the after-gavel portion ofthe video recording pursuant to the second clause of Exemption (c) of the Public Records Law. Exemption (c) applies to: 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. 427,432-33 (1983). Only the second clause of Exemption (c) applies to this determination. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2 (emphasis added). Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. The portion of the record that is the subject of this appeal contains verbal remarks by the Town's Moderator (Moderator) after the November 16, 2015 Special Town Meeting had concluded with the striking of the gavel. This portion of the video recording captures audio remarks of the Moderator that include derogatory comments regarding two specifically identified private citizens who were in attendance at the meeting.

Ms. Sarah A. Turano-Flores, Esq. SPR16/299 Page 3 May 27,2016 Release to the public of the after-gavel portion of the video recording is likely to result in identification of the two women about which the Moderator commented. Release of this identifying information regarding a specific person would tend to cause personal embarrassment to two private citizens. Protection of one's reputation is the type of situation that the privacy clause of Exemption (c) was designed to protect. See Champa v. Weston Public Schools, 473 Mass. 86 at 97 (2015) (where information is highly personal and disclosure may result in embarrassment and potentially lead to stigma, bringing it within the scope of [E]xemption (c)). It is the finding of this office that the withheld portion of the responsive record satisfies the first prong of the above-referenced test for withholding records pursuant to the second clause of Exemption (c), as it is an "intimate detail of a highly personal nature" thereby implicating the subject's privacy interests. See Attorney General v. Assistant Commissioner of the Real Property Dep't of Boston, 380 Mass. 623, 626 n2 (1980). Whereas, the Town has satisfied the first-prong of the privacy test of Exemption (c), it is necessary to determine whether the public right to access the withheld portion of the record is greater than the privacy interest of the identified persons in the record. I find that, whereas the public is aware of the Moderator's remarks through the published news article that any public interest in disclosure has been satisfied. Accordingly, I find the public interest in disclosure does not outweigh the privacy interest of the two individuals identified in the after-gavel comments by the Moderator. Accordingly, I find the Town acted properly in withholding the after-gavel portion of the responsive recording. If Ms. Myers is dissatisfied with the resolution of this appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit av.ailability of applicable judicial remedies). cc: Ms. K. C. Myers Mr. Michael Embury, Town Administrator