Sean Welenc v. Orange Police Department (SPR 20190649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10, 2019 SPR19/0649 Brenda L. Anderson ~~~~-----R:-eet}rds,~cce~ve-i--~~~~~~~--~~~~~~~~~~~~~~~~~~~~~~~· Orange Police Town of Orange 400 East River Street Orange, MA 01364 Dear Ms. Anderson: I have received the petition of Sean Welenc appealing the response of the Orange Police . Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Welenc requested six categories ofrecords pertaining to a certain incident. The Department provided a response to Mr. Welenc on March 18, 2019, denying his request citing Exemption (c). Unsatisfied with the Department's response, Mr. Welenc appealed to this office and SPRl 9/0649 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. 32.0)(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) (written response must "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 ... "); 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). 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

Brenda L. Anderson SPR19/0649 Page2 April 10, 2019 The Department's March 18, 2019 response In a March 13th email, the Town denied Mr. Welenc request stating "[c]alls involving protective custody cannot be released under exemption c (privacy exemption) of the Public Records Law." Exemption (c) Exemption ( c) applies to: ,,,e=rs=o+<n-H-lm~aru:knedical files or information; also any other matfflals~-at-ar------------ ----------+4 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). Second clause of (c) -privacy 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). 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

Brenda L. Anderson SPR19/0649 Page 3 April 10, 2019 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 ofs pecificity in responding and claiming exemptions The Department denied all responsive records to the request without providing the required specificity in claiming Exemption ( c) to withhold the records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the content within the record is exempt from disclosure under Exemption (c ) . · ·n~~m'r~~Mass 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Order Accordingly, the Department is ordered to provide a response to Mr. Welenc to support its redactions of the record under Exemption (c), in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Ill~--~ Rebecca S. Murray Supervisor of Records cc: Sean Welenc