Pat Bender v. Newton, City of - Police Department (SPR 20190218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 12, 2019 SPR19/218 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, § lOA; 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." Previous appeals This appeal was the subject of previous appeals. See SPR18/2039 Determination of the Supervisor of Records (January 2, 2019); SPR19/044 Determination of the Supervisor of Records (January 23, 2019). In my January 23rd determination I ordered the Department to provide Mr. Bender with a response in accordance with the provisions of the Public Records Law. The Department responded on January 29, 2019. Mr. Bender appealed and SPR19/218 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 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 SPR19/218 Page2 February 12, 2019 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. Current appeal The Department initially 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). The Department subsequently provided a response on January 3, 2018 in which it produced the records with full addresses redacted. In its January 29th response the Department provides additional information regarding its claim that the addresses may be withheld under Exemption (c). 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

Steven R. Smith SPR19/218 Page 3 February 12, 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. In its January 29th response the Department asserts "[w]hereas the personal address of the individuals are limited to only those individuals whom have been arrested, we have deemed that as 'intimate details of a highly personal nature' and therefore we will not disclose those details." In his appeal petition Mr. Bender indicates, in part, "I understand the name, address and charges relating to some arrests such as but not limited to Domestic Violence arrests are not subject to disclosure but the Newton PD has not met it's burden of proof to explain why each name, address and charge( s) for each and every arrest made by the Newton PD during a 24 hour time period are in fact records which are 'intimate details of a highly personal nature' and therefore not subject to disclosure even though Section 98F requires the Newton PD to disclose the name, address and charge(s) of those arrested in the Newton Police Department's Daily Log." G. L. c. 41, § 98F provides the following: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of

Steven R. Smith SPR19/218 Page4 February 12, 2019 domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. In light of the language of G. L. c. 41, § 98F, specifically that police departments" ... shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses ofp ersons arrested and the charges against such persons arrested," and that "[a]ll entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times," I find the Department has not met its burden to show how responsive addresses are "intimate details of a highly personal nature." Further, it does not appear the Department is invoking G. L. c. 41, § 98F(i)-(iv), which provides that certain entries are not public record. As a result, the Department has not met its burden to withhold responsive addresses. Conclusion Accordingly, the Department is ordered to provide Mr. Bender responsive records, 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: Pat Bender