Michael Grassia v. Beverly, City of - (SPR 20191299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>fsol' of Records July 12, 2019 SPR19/1299 Kevin Q. Corridan, Esq. Assistant City Solicitor - Records Access Officer City of Beverly Office of the City Solicitor 191 Cabot Street Beverly, MA 01915 Dear Attorney Corridan: I have received the petition of Michael Grassia appealing the response of the City of Beverly (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Grassia requested a copy of communications and logs relating to communications between certain named individuals from February 1o th to March 4t11 • The City's Mal'ch 26 all(/ April 3, 2019 responses In a March 26, 2019 response, the City informed Mr. Grassia that there is no call log and no log of in-person meetings. Mr. Grassia is advised, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In its April 3, 2019 response, the City informed Mr. Grassia that the records were put on a thumb-drive, and that some medical information and personal information contained in the records was redacted under Exemption ( c) of the Public Records Law. In a June 2ih email to a Public Records Division staff attorney, you informed this office that the City did not charge Mr. Grassia any fees to provide the records. After reviewing the records, Mr. Grassia petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Appeal In his June 2019 petition, Mr. Grassia states that there are four reasons for his appeal. Those reasons are that the City did not advise him of the instructions to file an appeal with the 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

Kevin Q. Cml'idan, Esq. SPR\9/1299 Page2 July 12, 2019 Supervisor, the City did not identify the portions of the records that were denied, that there were inconsistencies in the text messages he received and that the City did not provide any call logs. The City is advised, under the Public Records Law, if a records access officer (RAO) is denying access to records, the RAO must inform the requestor in its response of the right to seek an administrative appeal in a petition to the Supervisor as well as the judicial remedy available in superiol' court. See 950 C.M.R. 32.06(3)(c). In his petition for an appeal, Mr. Grassia suggests, "the records associated with these phones should therefore be considered a public record. One such record are the detailed call logs that simply list the telephone number, duration, date and time that a call was made. These detailed call logs are typically provided in hardcopy detailed cellphone bills and certainly could be obtained by retrieving, not creating, the detailed bills via any cellphone carrier's website." I find it is unclear whether the City is in possession of detailed cell phone billing statements that may be responsive to Mr. Grassia's request for call logs. Mr. Grassia asse1is that text messages from one School Committee member's phone were not provided. He states, "I did not receive any test messages from Kelly Ferretti's phone whatsoever, nor was this addressed or even mentioned in the response that I received from the [City]. I would contend that the records on School Committee member Kelly Ferretti's phone are different than the records of that conversation on other School Committee members' phones." Mr. Grassia also states that he did not receive any conesponding text messages from Mayor Michael Cahill's phone; nor, does he believe that he has received all the group text messages of the School Committee members from February 12, 2019. 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). "P11blic 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 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 ... "); 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).

Kevin Q. Corridan, Esq. SPR19/1299 Page 3 July 12, 2019 Exemption (c) Exemption (c) applies to: 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). Medical infonnation that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (l 987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). The City indicates in its April 3, 2019 response that it redacted medical information from some of the records; however, the City did not explain which records were redacted to protect the medical information. Second clause of( c) -privacy The City's April response also indicates that some information of a highly sensitive and personal nature was redacted from the records. 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).

Kevin Q. Corridan, Esq. SPR19/1299 Page 4 July 12, 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 !aw-abiding and efficient manner. Id. at 292. The City did not explain what type of information was redacted from the records that the City considers information that constitutes an unwarranted invasion of personal privacy. Mr. Grassia requested and was provided with emails and text messages; however, the City did not identify the particular records that the City withheld information from that it considers personal information under Exemption (c). In claiming the second clause of Exemption ( c) the City must detail whether disclosure would result in personal embarrassment to an individual of normal sensibilitiys; whether the materials sought contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA , 4 77 Mass. at 292. Therefore, I find the City did not meet its burden of specificity in claiming the second clause of Exemption (c) to withhold ce1tain of the information in the records. Burden ofs pecificity in claiming exemptions The City redacted medical and personal information under Exemption (c) without supp01ting its redactions of 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 City did not meet its burden of demonstrating how the redactions in the records are exempt from disclosure under both clauses of Exemption (c). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutmy exemptions are narrowly construed and are not blanket in nature). Furthermore, the City did not identify the records, and/or potions of the records it provided to Mr. Grassia that it redacted under Exemption (c). To deny access to a record under the Public Records Law, an RAO must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the City withheld portions responsive records without identifying which records were redacted and specifically how Exemption ( c) applies to the redactions.

Kevin Q. Corridan, Esq. SPR\9/1299 Page 5 July 12, 2019 The City's June 27, 2019 Tetter After this appeal was opened, you explained in a letter to a Public Records Division staff attorney that the City was unaware that Mr. Grassia was unsatisfied with the response and the records produced. Where the City is willing to address any outstanding issues, I encourage the parties to communicate and work together to satisfy Mr. Grassia's request and address any modifications to the request. Co11c/11sio11 Accordingly, the City is ordered to provide Mr. Grassia with a response, 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, ~.~ Supervisor of Records cc: Michael Grassia