Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20200052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 27, 2020 SPR20/0052 Patrick Ward Town Clerk .Town of Brookline Brookline Town Hall 333 Washington Street, Room 104 Brookline, MA 02445-6853 Dear Mr. Ward: I have received the petition of Brooks Ames, Esq. of Brookline Justice League appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 11, 2019, Attorney Ames, among other items, requested a copy of an identified individual's "MCAD complaint and any addendums as well as the Town's opposition(s)." The Town provided certain responsive records in redacted form, but denied access to records responsive to this request under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Attorney Ames petitioned this office and this appeal, SPR20/0052, was opened as a result. Tlte 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). 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, § 1O (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. 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

Patrick Ward SPR20/0052 Page 2 January 27, 2020 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 Town's October 28'" response In its October 28, 2019 response, the Town states that these records are exempt, because they are '"materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy.' Disclosing the requested materials would also frustrate the MCAD's practice of providing information related to its investigation only after a disposition has been rendered." 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 unwirranted 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, 432-34 (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). 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).

Patrick Ward SPR20/0052 Page 3 January 27, 2020 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. The Town's response did not contain the specificity required in a denial of access to public records. Based on the Town's response, it is unclear what responsive records are being withheld. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, 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). Attorney Ames requested an MCAD compliant, any addendums, and the Town's dispositions. As such, the Town must confirm whether it is withholding all these records from disclosure. Also, although the Town cites Exemption (c) to withhold responsive records, it does not provide enough information to establish how the withheld records constitute intimate details of a highly personal nature, are types of personal information which would cause embarrassment to an individual of normal sensibilities if disclosed, and are not available from other sources. See PETA, 477 Mass. 292. Additionally, the Town 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. Fmiher it is unclear how the records may be withheld, in their entirety, from disclosure. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a); see also Mass. Comm'n Against Discrimination, No. 18-P-464, 2019 WL 6127383, *3 (Mass. App. Ct. November 19, 2019) (indicating how MCAD's policy of withholding records regarding a pending investigation until a disposition has been rendered, " ... conflicts with the public records law's requirement that custodians 'shall' produce a copy of the public record 'or any segregable portion of a public record."'). Conclusion Accordingly, the Town is ordered to review the records, redact only where necessary, and provide Attorney Ames with responsive records, provided 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.

Patrick Ward SPR20/0052 Page 4 January 27, 2020 Sincerely, ~ I T ~ Supervisor of Records cc: Brook Ames, Esq.