Mildred A. Ford v. Ashland, Town of - Police Department (SPR 20171288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 15, 2017 SPR17/1288 Janice Neitz Records Access Officer Ashland Police Department 13 7 Main Street Ashland, MA O1 721 Dear Ms. Neitz: I have received the petition of Mildred Ford appealing the response of the Ashland Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ford requested records pertaining to an identified incident. Unsatisfied with the Department's response in which they indicated their intention to withhold the records under Exemption (c), Ms. Ford petitioned this office and this appeal was opened as a result. 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, § lOA(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, § 1O (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. September 1 l" response In their September 14th response, the Department noted their intention to withhold the requested documents under Exemption ( c ). 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

Janice Neitz SPR17/1288 Page2 September 15, 2017 Exemption (c) The Department contends that the requested record may be redacted under Exemption (c). 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, 432-34 (1983). 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 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 of records 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). 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). The Department indicates that it does "not and cannot by law release domestic abuse reports." However, the Department has not met its burden of specificity in claiming Exemption (c) of the Public Records Law to withhold the records in their entirety. The September 14t response is simply a declaration of intention to utilize Exemption ( c) to withhold records rather than explaining its applicability.

Janice Neitz SPRl 7/1288 Page 3 September 15, 2017 Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the Department intends on providing a supplemental response to Ms. Ford. 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. Ms. Ford may appeal the substantive nature of the Department's response within ninety days. See C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Mildred Ford