Matthew A. Slater v. Westford, Town of - Police Department (SPR 20201152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2020 SPR20/1152 Michelle Wright Westfield Police Department 53 Main Street Westford, MA 01886 Dear Ms. Wright: I have received the petition of Attorney Matthew A. Slater appealing the response of the Westford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Slater requested a particular incident report. The Department responded on July 9, 2020, producing the requested report with portions redacted pursuant to the privacy clause of Exemption (c). Unsatisfied with this response, Attorney Slater petitioned this office and this appeal, SPR20/1152, 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. 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

Michelle Wright SPR20/1152 Page 2 July 24, 2020 Current Appeal In its July 9, 2020 response, the Department indicates that it has redacted portions of the responsive records pursuant to the privacy clause of Exemption (c) of the Public Records Law. 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 July 9th response, the Department states that “[a]ll names and personal information have been redacted from [the report] per” Exemption (c). In his appeal petition, Attorney Slater notes that his office represents the victim named in the report, and argues that “[h]er name and

Michelle Wright SPR20/1152 Page 3 July 24, 2020 information should not have been redacted.” Attorney Slater additionally states that “[t]here are witnesses noted in this report. The redactions preclude us from identifying those witnesses.” 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, Attorney Slater’s purpose in making the request has no bearing on the public status of the requested report. Based on the Department’s response, I find it has met its burden to show that the name of the victim may be redacted from the requested report. However, I find that the Department has not demonstrated that Exemption (c) applies to permit the redaction of the names of the dog owner or of any witnesses. The Department must explain how disclosure of the names “would result in personal embarrassment to an individual of normal sensibilities, and how the record contains “intimate details of a highly personal nature” with respect to these individuals. See PETA, 477 Mass. at 292. Conclusion Accordingly, the Department is ordered to provide Attorney Slater with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Murray Supervisor of Records cc: Matthew A. Slater, Esq.