Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200124)

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

Rebecca S. Murray Supervisor of Records

February 4, 2020 SPR20/0124 James Johnson Town Administrator Town of Walpole 135 School Street Walpole, MA 02081

Dear Mr. Johnson:

I have received the petition of Samuel Obar appealing the response of the Town of ° Walpole (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Obar requested:

e “All text messages between [James Johnson] and Nancy Mackenzie between May 1, 2019 and January 1, 2020

e All text message and emails between [James Johnson] and Mark Gallivan and Jim O’Neil between May 1, 2019 and January 1, 2020 that relate to any issue involving Chris McKenzie; or relate to a proposed Selectmen recall election”

e A log from your cell phone of all calls between you and Nancy Mackenzie between May 1, 2019 and January 1, 2020.”

The Town provided Mr. Obar with a response on January 17, 2020, indicating that it possesses responsive text messages and is withholding them pursuant to Exemptions (c) and (f) of the Public Records Law. Unsatisfied with the Town’s response, Mr. Obar petitioned this office and this appeal, SPR 20/0124, 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, § 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); 950 C.M.R. 32.06(3); see also Dist.

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

James Johnson SPR20/0124 Page 2 February 4, 2020

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.

Appeal

In its January 17'" response, the Town indicates that it is withholding responsive records pursuant to Exemption (f) and the privacy clause of Exemption (c).

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 unwarranted invasion of personal privacy

G. L. c. 4, § 7(26)(c). Second clause of Exemption (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) y. 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

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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.

Exemption (f) Exemption (f) permits the withholding of:

investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

G.L. C. 4, § 7 (26)(f).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials, Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses, Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

The Town’s Response

In its January 17" response, the Town states that the responsive text messages “would clearly implicate the privacy and reputational rights of the individuals named therein.” Despite the Town’s assertion, it is unclear how the information contained in the text messages constitutes “intimate details of a highly personal nature” as discussed in PETA. See 477 Mass. at 292. It is additionally unclear how the information contained in the messages are the type of information the second clause of Exemption (c) is designed to protect. Id.

Regarding its Exemption (f) claim, the Town states that “the records related to your request are currently the subject of an ongoing, open investigation by law enforcement officials.” The Town further explains that “[w]here identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive records, such as in this instance, the responsive records will be withheld in its entirety.”

Based on the Town’s response, it is unclear how Exemption (f) applies to the records at issue. In particular, the Town has not shown that the responsive text messages constitute “investigatory materials necessarily compiled out of the public view by law enforcement or other

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investigatory officials....” Additionally, the Town has not demonstrated how release of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The Town has not provided supporting information concerning how disclosure of the messages would jeopardize, or be detrimental to, an on-going investigation.

Cell Phone Log; Use of Superior Knowledge

With respect to Mr. Obar’s third request, the Town states that it “does not have a log from [Johnson’s] cell phone as requested in item 3 of your request.” In response, Mr. Obar indicates that the term “log” as used in his request “can be in reference to anything in [Johnson’s] phone which would indicate the phone numbers he has called and received....” Based on these responses, it is unclear whether the Town possesses records containing information of the sort identified by Mr. Obar. The Town must clarify this matter. Please note that custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5).

Conclusion

Accordingly, the Town is ordered to provide a response to Mr. Obar, 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.

Sincerely,

Rebecca S. A Malay

Supervisor of Records cc: Samuel Obar