Arthur G. Grenier v. Beverly, City of - (SPR 20200504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2020 SPR20/0504 Kevin 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 (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 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." Previous appeal The requested records were the subject of a previous appeal. See SPR20/393 Determination of the Supervisor of Records (March 6, 2020). In my March 6th determination, I found that the City had not met its burden of withholding responsive records, in their entirety, under the second clause of Exemption (c). G. L. c. 4, § 7(26)(c). I also directed the City to identity the records in its possession. Accordingly, I ordered the City to provide Mr. Grenier with a response, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the City responded on March 9, 2020, providing additional information regarding its position to withhold responsive records from disclosure. 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). 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. 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 Corridan, Esq. SPR20/0504 Page 2 March 19, 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. 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. Tlte City's Marci, 91 response " In its March 9, 2020 response, the City asserts that "[t]he police reports that [it] intends to withhold under the second clause of Exemption C, cannot be redacted. If the City were to redact the content that constitutes intimate details of a highly personal nature, then you would only be able to tell that they are incident repmis generated by the Police Department." The City contends that in regards to explaining its position with specificity, " ... to discuss the nature of these reports with any specificity would vitiate the purpose of the exemption and [it] would not do so in response to a requestor." The City indicates should this office review the records in camera, it " ... would agree that there is no public benefit to disclosing this report and the privacy implications are obvious for both the incident reports." The City fmiher states that "[a]s to the logs that are responsive to your request, [it is] withholding those under MGL c. 41 Section 97D, in accordance with Exemption A. The logs were attached to the back end of the incident repo1is, which is why [the City] did not claim this statutory exemption previously." Exemption (a ) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law."

Kevin Corridan, Esq. SPR20/0504 Page 3 March 19, 2020 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. 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 ofE xemption (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. 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.

Kevin Corridan, Esq. SPR20/0504 Page 4 March 19, 2020 In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the City to withhold the responsive records, in their entirety, the City must provide this office with un-redacted copies of the 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 record to the City's custody and issue an opinion on the public or exempt nature of the records. 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, 384 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. 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. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the incident rep01is and the logs for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur Grenier