David Brown v. Revere, City of - Police Department (SPR 20171240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 22, 2017 SPR17/1240 Lieutenant Michelle Mangino City of Revere Police Department 400 Revere Beach Parkway Revere, MA 02151 Dear Lieutenant Mangino: I have received the petition of David Brown appealing the response of City of Revere Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on July 6, 2017, Mr. Brown requested a "copy of the recently completed report from assessment center used for police chief." Mr. Brown also requested "all records associated with the assessment center to include the contract or proposal or other method for securing the services of the company to include the cost and terms of the services provided along with the questions and the answers provided by each person undergoing the test along with recordings (audio and video) made during the test." On July 20, 2017, the City provided certain records and denied access to others under Exemption (c) and (1) ofthe Public Records Law. G. L. c. 4, § 7(26)(c), (1). Unsatisfied with the Department's Exemption (c) claim, Mr. Brown petitioned this Office and this appeal, SPR17/1240, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records [!.republic 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 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(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 or redacted portion of the responsive record. 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 Michelle Mangino SPR17/1240 Page 2 September 22, 2017 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 July 20th response In its July 20th response, the Department indicated that it had "made a determination that the names of candidates within the report are not public records and exempt from disclosure in accordance [with] Mass. Gen. Laws ch. 4 § 7(26)(c). The names of candidates have been redacted because the assessment report contains materials relating to specifically named individuals and the disclosure of which may constitute an unwarranted invasion of personal privacy." Exemption (c) As the Department relies on the second clause of Exemption (c) to withhold the names of candidates within the report, this exemption merits consideration. Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, 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 separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause, which applies to requests for records that implicate privacy interests, is relevant to this appeal. 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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether discloswe 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 Michelle Mangino SPR17/1240 Page 3 September 22, 2017 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 292 n. 13; 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). This clause requires 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, 4 77 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. Based on the Department's response, it is unclear how each of the candidates whose identity was redacted possesses a sufficient privacy interest to fall under the second clause of Exemption (c). It is uncertain how disclosing these names would result in personal embarrassment to an individual of normal sensibilities. Also, the Department has not demonstrated how the withheld information is an intimate detail of a highly personal nature. See PETA, 4 77 Mass. at 292. Further, Mr. Brown mentioned that "the name of every police officer in the Revere Department and their respective score on a promotional exam for sergeant, lieutenant and captain is a public record and posted on the Commonwealth's website." Therefore, the Department has not demonstrated how Exemption (c) will apply in this instance as similar information can be found on the Commonwealth's website. Therefore, the Department must address whether this information is available from other sources as required by the PETA decision. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provide said response 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David Brown