Pat Bender v. Newton, City of - Police Department (SPR 20182039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 2, 2019 SPRlS/2039 Steven R. Smith Bureau Commander Newton Police Department 1321 Washington Street Newton, MA 02465 Dear Mr. Smith: I have received the petition of Pat Bender appealing the response of the Newton Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 11, 2018, Mr. Bender requested the "records relating to each adult booked during the date 12-10-2018: .Name .Age in years or year of birth or date of birth .C harge( s )/Offense( s) .Race .Sex .Full Address .If possible please limit the records relating to adults booked for new charges only." The Department responded on December 14, 2018 by denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Mr. Bender petitioned this office and this appeal, SPRl 8/2039, 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). 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

Steven R. Smith SPR18/2039 Page 2 January 2, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte Department's December Ii11 response In its December 14, 2018 response, the Department asserted that the "[t]he records you requested are exempt pursuant to Exemption ( c) The Privacy Exemption any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy[.] If requested, we will provide the information with the personal information (home address) redacted." 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., 477 Mass. 280,292 (2017).

Steven R. Smith SPR18/2039 Page 3 January 2, 2019 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. Burden of specificity; segregable portions The Department's December 14th response merely states the language of Exemption ( c) without specifically explaining how disclosure of responsive records "may constitute an unwarranted invasion of personal privacy" as required by Exemption (c). G. L. c. 66, § IO(b)(iv) (w ritten 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. As a result, the Department has not met its burden to withhold responsive records in their entirety. See G. L. c. 66, § lO(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure). Conclusion Given that the Department did not meet its burden to explain how Exemption ( c) permits it to withhold the records, the Department is hereby ordered to review the records, redact where necessary, and provide Mr. Bender 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 Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Pat Bender