Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20181893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/1893 Joseph I. Macy, Esq. Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Judge Macy: I have received the petition of Collin Dias appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 23, 2018 Mr. Dias requested the following records: REQUEST 1: Any documents handed, given or served to Mayor Correia from any federal agency or anyone on behalf of a federal agency relating to his October 11th arrest REQUEST 2: Any documents handed, ·given, or served to Gen Andrade, Cathy Ann Viverios or any other city employee on the 6th floor since October 11th from any federal agency or anyone on behalf of a federal agency. The City responded in a letter dated November 27, 2018 by denying access to records. 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 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

Joseph I. Macy, Esq. SPR18/1893 Page 2 December 18, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Appeal In its November 2?1h response the City indicates that with respect to both categories of records, "[t]he records sought are not public records within the possession, custody or control of the City under G.L. c. 66, § 1O (a)(ii). Pursuant to G.L. c. 66, § 1O (b )(iv) and 950 C.M.R. 32.06(3), to the extent any of the records are in the City's control, please be advised that the City intends to withhold this information pursuant to .... " Exemptions (c) and (f) of the Public Records Law. G. L. C. 4, § 7(26)(c), (f). 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 People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 4 77 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

Joseph I. Macy, Esq. SPR18/1893 Page3 December 18, 2018 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. Exemption (j) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In his appeal Mr. Dias indicates that the City" ... stated that the records I requested are not in custody of the city. I contest this because the records, that exist, are in custody of Mayor Correia, Cathy Ann Viveiors (sic), and Gen Andrade, who are all city officials. Therefore the records I requested are within the possession of the city." Mr. Dias also provides links to press conferences and media interviews and asserts "[t]herefore I believe because of that, this is no longer a private matter. I don't believe the records can legally be hidden anyway." Based on its response, I find it is unclear how the City does not have possession, custody, or control ofresponsive records, particularly in light of the fact that the records pertain to City employees. The City must clarify whether it does, in fact, possess responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories ofrecords 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. ...) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I also find that the City has not met its burden to demonstrate how responsive records in its possession may be withheld in their entirety under Exemptions ( c) or (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a).

Joseph I. Macy, Esq. SPR18/1893 Page 4 December 18, 2018 Conclusion Accordingly, the City is ordered to provide a response to Mr. Dias 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Collin Dias