Arthur G. Grenier v. Beverly, City of - (SPR 20200393)

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

Rebecca S. Murray Supervisor of Records

March 6, 2020 SPR20/0393

Kevin Q, Corridan, Esq. Assistant City Solicitor City of Beverly

191 Cabot Street Beverly, MA 01915

Dear Attorney Corridan:

I have received the petition of Arthur G. Grenier appealing the response of the City of Beverly Police Department (Department) to a request for public records, G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, on January 28, 2020, Mr. Grenier requested: “CAD/call Log, Incident and Arrest reports, from the Police Department, regarding 43 Pond Street from 2015 to the present.”

In a February 24, 2020 email response, you informed Mr. Grenier that the Department is withholding multiple incident reports under the second clause of Exemption (c) in their entirety. You also indicated, “[t]here is no way to redact these reports without undermining the interests protected by Exemption (c), As a result, Mr. Grenier petitioned the Supervisor of Records (Supervisor), and this appeal was opened.

Mr. Grenier stated in his petition that the Department did not identify all the records in its possession that are responsive to his request. In addition, Mr. Grenier indicates that the Department did not provide a timely response. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records,.a fee estimate for provision of the records, or a denial, The Department is reminded that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response.

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

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. Corridan, Esq. SPR20/0393 Page 2 March 6, 2020

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).

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).

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 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.

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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.

Your February 24" response indicates that given the nature of the reports and their reference to intimate details of a highly personal nature, the Department cannot redact the reports and will withhold the reports in their entirety under the privacy clause of Exemption (c). The Department has not met its burden of specificity to withhold the reports in their entirety due to the content containing “intimate details of a highly personal nature.” The Department did not explain whether disclosure, even in a redacted format, would result in personal embarrassment to an individual of normal sensibilities; how the records sought contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA, 477 Mass. at 292.

Burden of specificity; duty to segregate

The Department denied Mr. Grenier’s request in its entirety under the second clause of Exemption (c) without support to withhold the responsive 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, § 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 responsive records, in their entirety, are exempt 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). The Department must produce any non- exempt, segregable portions of the public records, G. L, c, 66, § 10(a).

The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.MLR. 32.06(3)(c)(4).

Order

Accordingly, the Department is ordered to provide Mr. Grenier 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.

Kevin Q. Corridan, Esq. SPR20/0393 Page 4 March 6, 2020

Sincerely,

Rebecca S. Mu lian

rray Supervisor of Records

ce: Arthur G. Grenier