Andrew McIsaac v. Bridgewater, Town of - Police Department (SPR 20171500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2017 SPR17/1500 Jason Rawlins, Esq. The Law Offices of Jason M. Rawlins 555 Bedford Street, Suite 1 Bridgewater, MA 02324 Dear Attorney Rawlins: 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, § lOA; 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); SPR 17/726 Determination of the Supervisor of Records (June 12, 2017). In my June 12th determination, I found that the Department had not met its burden and ordered the Department to provide a supplemental response to Mr. Mclssac. In a letter dated July 5, 2017, you requested that I reconsider my previous determination with respect to the applicability of Exemption (c) of the Public Records Law. G. L. c. 4, §7 (26)(c). On September 27, 2017 I ordered the Department to provide a response that addressees the applicability of Exemption (c), specifically in light of the Supreme Judicial Court's (SJC) decision in People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280 (2017). The Department provided this.response in a letter dated October 17, 2017. Mr. Mclsaac appealed and SPRl 7/1500 was opened as a result. 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

Jason Rawlins, Esq. SPRl 7/1500 Page 2 November 3, 2017 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, § lO(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. The Department's October 11ft response ih In its October 1 response, the Department asserts that the responsive names and addresses may be withheld under Exemption ( c) and addresses the factors outlined in PETA. 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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure 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

Jason Rawlins, Esq. SPRl 7/1500 Page 3 November 3, 2017 People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (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, 477 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. The Department asserts "in applying just the few factors (which are factors considered in addition to those cited in our prior Request for Reconsideration) stated by the Court in PETA, the Exemption ( c) balancing test does not favor further disclosure in this case." You indicate that "[f]irst, this information involves the home addresses of private parties. Second, this information combined, would be incredibly difficult to ascertain within any other context and is not readily available. Finally, the disclosure of this information could easily result in identity theft or be utilized by anyone who is attempting to find a specific person or a person of a specific, race, age or sex." You further state that "an invasion of privacy of this magnitude is not outweighed by the public interest in obtaining said information." However, the Department's response does not consider the availability of responsive information contained in the public "Street List." Massachusetts law requires the creation of "street lists" of aHpersons residing in the Commonwealth. See Pottle v. School Comm. of Braintree, 395 Mass. 861, 866 (1985). These street lists, which are available to the public in the aggregate, include the names, residential addresses, and occupations for the residents listed. See G. L. c. 51, §§ 4, 6; Pottle, 395 Mass. 861 at 866. Nor does the Department acknowledge that name, address and party affiliation of voters are required to be publically available in the aggregate on the "Voter's List." See G. L. c. 51, § 55. ("All first voting lists shall be printed and available for public distribution not later than the first day of July in state election years."). It should be noted that other statutes require that names and addresses be made publically available. See G. L. c. 54, § 91 (requiring public inspection a list including the names and addresses of voters who have applied for absentee ballots); G. L. c. 51, § § 41, 42H ( completed affidavits of voter registration, which contain name; residential address; date of birth; party affiliation; former name and address, if any; and affirmation of U.S. citizenship status are publically available from cities; see also SPR16/335 Determination of the Supervisor of Records (June 3, 2016).

Jason Rawlins, Esq. SPRl 7/1500 Page 4 November 3, 2017 The Appeals Court recognized that a "more nuanced" examination, dependent on the context of the disclosure, is required in determining whether a privacy interest is implicated. Georgiou v. Comm'r of Dept. oflndustrial Accidents, 67 Mass. App. Ct. 428,434 (2006); see also Boston Globe Media Partners, LLC v. Dept. of Public Health, Suffolk Sup. No. 14A074-E (August 25, 2017). Unlike in Georgiou, where the release of the requested documents would identify employees as being sufficiently disabled to be out of work for five or more days, or in Boston Globe Media Partners, LLC where producing responsive indexes could disclose information about adoptions, gender reassignments and details of wedding ceremonies, in the current appeal disclosure would result in identifying individuals that received a citation on a particular day. See Georgiou, 67 Mass. App. Ct. 428; Boston Globe Media Partners, LLC, 14- 4074-E. The release of the requested identifying information has not been established to likely result in personal embarrassment to an individual of normal sensibilities or contain intimate details of a highly personal nature information. Moreover, responsive information is currently available in the aggregate from other public sources. In light of the factors articulated in Gerogiou and PETA, I find the Department has not demonstrated a strong privacy interest in the identifying information within the responsive records. With respect to balancing privacy and public interests, in a previous response, the Department asserted "[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 continued 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, disclosure of the names and addresses enhances the public's ability to examine the Department's activity by, for example, shedding light on whether individuals obtain preferential treatment. The information would also help differentiate individuals with the same name. Doe v. Registrar of Motor Vehicles, 1 Mass. L. Rep. 156 (1993) (discussing the usefulness of additional information to differentiate between individuals with the same name). In light of this information's effectiveness in informing the public about whether the Department's activity is lawful and efficient, I find that the public interest in obtaining the requested names and addresses substantially outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 291-92. For the reasons described above, I find the Department has not met its burden to withhold responsive names and addresses under Exemption ( c) . I understand a Public Records Division staff attorney contacted you about this matter.

Jason Rawlins, Esq. SPRl 7/1500 Page 5 November 3, 2017 Conclusion Accordingly, the Department is ordered to provide Mr. Mclsaac responsive records 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: Andrew Mclsaac