Steven Courtemarche v. Lawrence, City of - Legal Department (SPR 20180045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 26, 2018 SPR18/045

Raquel D. Ruano, Esq.

City of Lawrence

Office of the City Attorney 200 Common Street Suite 306 Lawrence, MA 01840 —

Dear Attorney Ruano:

I have received the petition of Steven Courtemarche appealing the response of the City of Lawrence Office of the City Attorney (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32,08(1). Mr. Courtemarche requested two (2) categories of records pertaining to the “mugshots” of an identified individual as well as an “unredacted copy” of an identified incident report.

Office Response

The Office issued a response on December 4, 2017 denying Mr. Courtemarche access to the requested records. Access to the requested “mugshots” was denied on the basis that Mr. Courtemarche was already in receipt of all records responsive to this request. The Office then denied Mr. Courtemarche access to the identified incident report that he had requested by claiming Exemption (c) of the Public Records Law.

Mr. Courtemarche appealed the Office’s December 4" response and denial of access to the requested records, resulting in the opening of this appeal.

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, § 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).

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

Raquel D. Ruano, Esq. ~ SPR18/045 Page 2 January 26, 2018

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.

No duty to create records

In its December 4" response pertaining to the request for “mugshots,” the Office states, “*...[Mr. Courtemarche is] already in possession of all responsive documents as they were sent to [him] on October 6, 2017. No other responsive documents exist for this request.” Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). As Mr. Courtemarche appears to be in receipt of

all responsive records, I find that the Office has met its burden in responding to this portion of the request.

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). The first clause, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

Raquel D. Ruano, Esq. SPR18/045 Page 3 January 26, 2018

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

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). :

The Office’s December 4” response states that, “[t]he information you are seeking is not public record as it contains personal identifying information that is exempt from the Public Records Law under M.G.L. c. 4, § 7(26)(c).” I find that the Office has not met its burden of

specificity in explaining how either clause of Exemption (c) applies to withhold the information and why. .

Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with

specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

The Office’s December 4” response did not contain the level of specificity required in withholding content from a record or in denying access to records. Instead, the Office merely cites Exemption (c), as well as the CORI Act without any further explanation as to the exemption’s applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records.

Order

Given that the Office did not meet its burden in providing specific reasons for the withholding of the requested records, accordingly, the Office is ordered to provide responsive records in a manner consistent with this determination, the Public Record Law, and its Regulations within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Raquel D. Ruano, Esq. SPR18/045 Page 4 , January 26, 2018

Sincerely,

Rebecca S. Murray Supervisor of Records

cc: Steven Courtemarche