Danielle Crosby v. Stoneham, Town of - Police Department (SPR 20200872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 16, 2020 SPR20/0872 James McIntyre Chief of Police Town of Stoneham Police Department 47 Central Street Stoneham, MA 02180 Dear Chief McIntyre: I have received the petition of Danielle Crosby appealing the response the Stoneham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Crosby requested police incident report number 2004774. The Department responded on May 28, 2020, withholding a responsive record pursuant to Exemption (c) of the Public Records Law. Unsatisfied with this response, Ms. Crosby petitioned this office and this appeal, SPR 20/0872, 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. 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 May 28, 2020 response, the Department indicates that it is withholding responsive communications pursuant to the personnel and privacy clauses of Exemption (c). 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 McIntyre SPR20/0872 Page 2 June 16, 2020 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) 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. In its response, the Department states that it is withholding the report “in accordance with Exemption C of Massachusetts General Law, chapter 4, section 7(26) (Privacy and Medical Related Information) as the record contains intimate details of a highly personal nature….” In a conversation with a staff attorney from the Public Records Division, the Department provided additional information regarding the content of the responsive record.

James McIntyre SPR20/0872 Page 3 June 16, 2020 Segregable Portions Based on the District’s statements, I find it has met its burden to show that the record contains information that may be withheld pursuant to the privacy clause of Exemption (c). However, it is unclear whether Exemption (c) permits the withholding of the responsive record in its entirety. 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). Conclusion Accordingly, whereas I find the Department has not met its burden to show that the responsive record may be withheld in its entirety, the Department is ordered to provide a supplemental response to Ms. Crosby as soon as practicable. Such response must be made in accordance with this order, the Public Records Law, and its Access Regulations. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Danielle Crosby