Kenneth R. Rosen v. Franklin County Sheriff's Department (SPR 20181485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 11, 2018 SPRlS/1485 Lt. Nick Carme Franklin County Sheriff's Office 160 Elm Street Greenfield, MA O1 301 Dear Lt. Carme: I have received the petition of Kenneth R. Rosen appealing the response of the Franklin County Sheriff's Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rosen requested "[a]ny and all documents, correspondence, transcripts, written or oral testimonies, text messages, recordings, notes, emails, or case files that mention or include" an identified individual and/or certain keywords. The Office responded on September 18, 2018 by denying access to records under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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 Office's September 18'11 response In its September 18th response the Office asserts that it "is prepared to deny your request for public records for the following reasons. Exemption A and C. Exemption A specifically 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

Lt. Nick Carme SPR18/1485 Page 2 October 11, 2018 allows the withholding of Criminal Records Information (C.O.R.I.). A record that is recorded as a result of the initiation of criminal proceedings may be withheld under the C.O.R.I statute. The defendant my [sic] appeal his conviction." You also note "Exemption C specifically allows withholding information or other materials or data relating to specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." Criminal Offender Record Information Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). I find that based on the Office's response it is unclear how responsive records constitute CORI under the new definition. 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.

Lt. Nick Carme SPR18/1485 Page 3 October 11, 2018 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) (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. I find that based on the Office's response, it has not met its burden to show how disclosure of all responsive records "may constitute an unwarranted invasion of personal privacy," particularly in light of the factors discussed in PETA. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying the records. Therefore, the Office must identify the type ofrecord(s) it has in its possession that it withheld. Additionally, the Office has not met its burden to show how all responsive records, in

Lt. Nick Carme SPR18/1485 Page 4 October 11, 2018 their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Conclusion Given that the Office did not meet its burden to explain how an exemption applies to the records, the Office is ordered to review the records, redact where necessary, and provide Mr. Rosen with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. The Office may file a request for reconsideration within ten business days of the date of this determination letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kenneth Rosen