Pat Bender v. Newton, City of - Police Department (SPR 20190044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2019 SPR19/0044 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. Previous appeal This appeal was the subject of a previous appeal, SPR18/2039 Determination of the Supervisor of Records (January 2, 2019). In my January 2nd determination I ordered the Department 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" because "the Department did not meet its burden to explain how Exemption (c) permits it to withhold the records." 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 SPR19/0044 Page 2 January 23, 2019 Following the January 2nd determination, the Department provided a response on January 3, 2018 in which it produced the records with full addresses redacted. Unsatisfied with the Department's response, Mr. Bender petitioned this office and this appeal, SPR19/0044, 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). 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. 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, dcte1minations 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

Steven R. Smith SPR19/0044 Page 3 January 23, 2019 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. Burden of specificity; segregable portions The Department's January 3rd response merely states: "We have enclosed the arrest information requested for the year 2018. In accordance with the ruling SPR 18/2039 we are redacting the personal information of home addresses from the arrestees." G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories ofrecords or portions ofrecords 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 the full address of the responsive records. See G. L. c. 66, § lO(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure). Conclusion For the reasons discussed above, the Department is ordered to provide Mr. Bender with a response, in accordance with the provisions of the Public Records Law within ten business days. If the Department maintains that any portion of the responsive records is exempt from disclosure, it must provide Mr. Bedner with a written explanation, with specificity, how a particular exemption applies to the record. 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: Pat Bender