Andrew McIsaac v. Abington, Town of - Police Department (SPR 20192411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 12, 2019 SPR19/2411

JoAnn Gillis —

Records Coordinator

Town of Abington Police Department 215 Central Street

Abington, MA 02351

Dear Ms. Gillis:

I have received the petition of Andrew Mclsaac appealing the response of the Town of Abington Police Department (Department) to a request for public records, G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mclsaac requested a copy of: “all incident reports and logs associated with an [identified address] in Abington created on 11/30/2019,”

In a December 2, 2019 response, the Department provided redacted records pertaining to Mr. MclIsaac’s request pursuant to Exemption (c) of the Public Records Law. As a result, Mr, Mclsaac petitioned the Supervisor and this appeal was opened. In his petition, Mr. McIsaac states, “[t]he records custodian did not justify the denial or provide non-exempt segments of the requested records,” |

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, § 10A(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, § 10(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).

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

JoAnn Gillis SPR19/2411. Page 2 December 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).

First clause of (c)

The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and © promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass; 792, 798 (2000). The courts have also discussed specific categories of records that may be.redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin, and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

The first clause of Exemption (c) also allows a record custodian to withhold medical information 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 (1987); 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).

It is unclear from the Department’s December 2, 2019 response whether the Department has redacted personnel and/or medical information from the records under the first clause of Exemption (c).

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

JoAnn Gillis SPR19/2411 Page 3 December 12, 2019

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 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. .

It is also unclear from the Department’s December 2™ response whether the Department redacted certain information under the sécond clause of Exemption (c). Despite the Department’s response, it has not provided information to establish how the withheld information in the records provided to Mr. Mclsaac constitutes the type of personal information which would cause embarrassment to an individual of normal sensibilities if disclosed; would constitute an intimate detail of a highly personal nature; and is not available from other sources. See PETA, 477 Mass. 292,

- Burden of specificity in claiming exemptions

The Department provided records in redacted format under Exemption (c) without providing any support in claiming the exemption. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(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 redactions to the responsive records, are exempt from disclosure under Exemption (c). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly

construed and are not blanket in nature).

JoAnn Gillis SPR19/2411. Page 4 | December 12, 2019

Conclusion

Accordingly, the Department is ordered to provide Mr. Mclsaac with a response to the request, 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.

Lbbeson

Rebecca S. Kbeeco Supervisor of Records

cc: Andrew Mclsaac