Andrew McIsaac v. Abington, Town of - Police Department (SPR 20192511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2020 SPR19/2511 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 Abington Police Department (Department) to a request for public records. G. L. c. 66, § lOA; 950 C.M.'R. 32.08(1). Specifically, Mr. Mclsaac requested a copy of "all incident repmis and logs associated with an [identified address] in Abington created on 11/30/2019." Previous Appeal The requested records were the subject of a previous appeal. See SPRl 9/2411 Determination of the Supervisor of Records (December 12, 2019). In my December 12th determination, I found that it was unclear the type of information redacted from the responsive records and how Exemption (c ) permitted the Department to withhold such portions from disclosure. Accordingly, I ordered the Department to provide Mr. Mcisaac with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department responded on December 20, 2019, providing additional information regarding its exemption claim. Contending that "[t]he Depmiment still has not provided information to establish how the redacted information is exempted from public disclosure[,]" Mr. Mcisaac petitioned this office and this appeal, SPRl 9/2511, 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). 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

J oAnn Gillis SPR19/2511 Page 2 January 6, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's December 201 response " In its December 20, 2019 response, the Department, stating the language of Exemption (c) and the factors under PETA, asserts that "[t]he act of disclosing this information would result in personal embarrassment to an individual of normal sensibilities also the materials sought contain intimate details of a highly personal nature." 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). Second clause ofE xemption (c) - privacy 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 People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017).

J oAnn Gillis SPR19/2511 Page 3 January 6, 2020 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. Although, the Department states that disclosure" ... would result in personal embarrassment to an individual of normal sensibilities ... [and] the materials sought contain intimate details of a highly personal nature[,]" it is unclear whether the information is available from other sources. Additionally, the Department did not provide any information regarding the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. Conclusion Accordingly, the Department is ordered to provide Mr. Mcisaac with a response to the request, provided in a maimer consistent with this order, the Public Records Law and its Regulations within ten 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. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the exemption claim made by the Department to redact portions of the responsive records, the Department may provide this office with un-redacted copies of responsive records for in camera inspection without delay. See 950 C .. M.R. 32.08(4). After I complete my review of the documents, I will return the records to the Department's custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm'n Against Discrimination, 3 84 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

J oAnn Gillis SPR19/2511 Page 4 January 6, 2020 Records are submitted for the limited purpose of review. This office is not the custodian .of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See· 950 C.M.R. 32.08(4 )( c) . This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Depa1iment may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Munay Supervisor of Records cc: Andrew Mcisaac