Benjamin Berke v. Brockton, City of - Fire Department (SPR 20201027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2020 SPR20/1027 Jeffrey Marchetti Deputy Chief of Police Brockton Fire Department 560 West Street Brockton, MA 02301 Dear Chief Marchetti: I have received the petition of Benjamin Berke appealing the response of the Brockton Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 9, 2020, Mr. Berke requested “[a] spreadsheet listing the names of all Brockton Fire Department employees, their job titles, the year they were hired (or the number of years they’ve served on the department, whichever is easier), and the name of the town or city they currently live in. Please note that I am not requesting the home address of any BFD employee, only the name of their hometown.” On June 24, 2020, the Department provided a response which included a link to access portions of the responsive records. The Department denied access to a portion of the responsive records under Exemptions (c) and (o) of the Public Records Law. G. L. c. 4, § 7(26)(c), (o). Unsatisfied with the Department’s response, Mr. Berke petitioned this office and this appeal, SPR20/1027, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Berke’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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

Deputy Chief Marchetti SPR20/1027 Page 2 July 10, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s June 24th response In its June 24, 2020 response, the Department provided a link to access responsive records. The Department indicated that it withheld the name of the city or town of each employee, because “. . . M.G.L. c. 4, § 7(26)(o) exempts from disclosure ‘the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories. . .’” The Department further stated that “. . . M.G.L. c. 4, § 7(26)(c), exempts from disclosure any ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ Pursuant to these exemptions, the [Department] is withholding you[r] request for the names of the town or city where individual Brockton Fire Department employees currently reside. Such information would easily reveal the home addresses of City employees and would constitute an unwarranted invasion of personal privacy.” 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).

Deputy Chief Marchetti SPR20/1027 Page 3 July 10, 2020 Second clause of Exemption (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). Only the second clause of Exemption (c) is applicable to this determination. 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. Based on the Department’s response, I find it is unclear how providing the name of the city or town “. . . would easily reveal the home addresses of City employees” as claimed by the Department. It is additionally uncertain how disclosure of the information “. . . would constitute an unwarranted invasion of personal privacy.” Specifically, the Department has not demonstrated that the name of the city or town of its employees constitutes an intimate detail of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear from the Department’s response whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department has not identified a privacy interest that outweighs the public interest in disclosure. See id. at 291. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an

Deputy Chief Marchetti SPR20/1027 Page 4 July 10, 2020 employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Based on the Department’s response, it is unclear how Exemption (o) permits it to withhold the name of the city or town of the Department’s employees. Specifically, it is uncertain how the name of the city or town constitutes the home address of employees as contemplated under Exemption (o). The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Mr. Berke with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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. Murray Supervisor of Records cc: Benjamin Berke