Andrew McIsaac v. Bridgewater, Town of - Police Department (SPR 20170726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12, 2017 SPR17/726 Lt. Thomas Schlatz Bridgewater Police Department 220 Pleasant Street Bridgewater, MA 02324 Dear Lt. Schlatz: I have received the petition of Andrew Mclsaac appealing the response of the Bridgewater Police Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mclsaac requested "all Massachusetts Uniform Citations issued by Bridgewater Police Officers on January 1, 2017." Previous appeals The requested records were the subject of prior appeals. See SPRl 7 /307 Determination of the Supervisor of Records (March 16, 2017); SPRl 7 /340 Determination of the Supervisor of Records (March 22, 2017); SPRl 7/431 Determination of the Supervisor of Records (April 14, 2017); SPRl 7/573 Determination of the Supervisor of Records (May 11, 2017). In response to the May 11th determination, the Department provided a supplemental response to Mr. Mclsaac on May 24, 2017 in which the Department redacted portions of the responsive records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Mr. Mclsaac objects to this response and this appeal (SPRl 7 /726) was opened. 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, § lO(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, § lO(c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the OneAshburtonPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lt. Thomas Schlatz SPR17/726 Page 2 June 12, 2017 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. 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, 432-33 (1983). 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 Gen., 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. This clause does not protect all data relating to specifically named individuals. Rather, it only permits custodians ofrecords to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Real Prop. Dep't, 380 Mass. at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; 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).

Lt. Thomas Schlatz SPRl 7/726 Page 3 June 12, 2017 This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). In its May 24th response the Department provides the responsive license plate numbers, but continues to withhold responsive names, addresses, and license numbers. Please note that in my May 11th determination I found the Department met its burden to withhold responsive license numbers. The Department indicates "[b] y releasing the name, address and license number in conjunction with the date of birth and the other information that you have already received, we would be greatly jeopardizing the personal information of the individuals, maldng them very susceptible to various crimes associated with Identity Theft." The Department provides additional information in support of its position, including examples of how identities can be stolen. With respect to balancing privacy and public interests, the Department asserts "[t]he public interest of learning the personal identity of the nine individuals that received a 'written warning' on January 1, 2017, from the Bridgewater Police does not outweigh the ramifications that could result from the disclosure of the personal identifying characteristics of the individuals involved." The Department continues by stating "[t]he susceptibility to [i]dentity theft type crimes exposed to these individuals, in addition to the severe emotional distress that is commonly fixed to the victims of these types of crimes, greatly outweighs the public interest of the identity of these nine individuals." However, it remains unclear how the names and addresses rise to the level of an intimate detail of a highly personal nature as required to withhold information under Exemption ( c) , nor is it clear how revealing that an individual received a "written warning" constitutes an intimate detail. See Doe v. Registrar of Motor Vehicles, 1 Mass. L. Rptr. 156 (1993) (finding that dates of birth of identified individuals are not "intimate details of a highly personal nature," due, in part, to the availability of this information from other sources and the limited intimate nature of this information). I understand a Public Records Division staff attorney contacted the Department and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Mclsaac a supplemental response prepared in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Lt. Thomas Schlatz SPRl 7/726 Page4 June 12, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Mclsaac