Paul J. Kernan v. Sandwich, Town of - Police Department (SPR 20201227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2020 SPR20/1227 Marya Caristi Sandwich Police Department 255 Cotuit Road Sandwich, MA 02563 Dear Ms. Caristi: I have received the petition of Paul Kernan appealing the response of the Sandwich Police 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 7, 2020, Mr. Kernan requested “CAD Incident Logs for Peter’s Pond Campground, 185 Cotuit Road, site Oak 2, and incidents involving [two identified individuals] that occurred since April 15, 2016. The logs should include Incident #, Date/Time, and Incident Type. If the log entry refers to an incident involving the [identified individuals], I request a copy of the corresponding incident and/or call reports [and] any other in-house information for the subjects . . .” Previous appeals The requested records were the subject of previous appeals. See SPR20/0994 Determination of the Supervisor of Records (June 25, 2020) and SPR20/1016 Determination of the Supervisor of Records (July 10, 2020). In my July 10th determination, I found that the Department had not met its burden to explain its redactions under Exemptions (a) and (c). Subsequently, the Department provided a response dated July 16, 2020, which provided additional information regarding its exemption claims. Unsatisfied with the Department’s response, Mr. Kernan petitioned this office and this appeal, SPR20/1227, 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). 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

Marya Caristi SPR20/1227 Page 2 August 4, 2020 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 July 16th response In its July 16, 2020 response, the Department explains that it redacted information under Exemption (c) because [d]isclosure of information in the report would result in personal embarrassment for involved individuals. It was determined that the public interest does not substantially outweigh this invasion of privacy. Furthermore, residents were interviewed as a result of the investigation. Disclosing this information would result in an unwanted invasion of their privacy and would undermine the trust and confidence of future witness for this department.” Additionally, the Department indicates that “[r]edactions were made report 18-274-AR in accordance with the Statutory Exemption of the Public Record Law. Records pertaining to an individual under the age of 17 shall not be a public record. Any redactions were made to protect the rights of the juvenile involved in the incident.” 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.”

Marya Caristi SPR20/1227 Page 3 August 4, 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 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, 432-33 (1983). 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.

Marya Caristi SPR20/1227 Page 4 August 4, 2020 The Department’s response did not contain the specificity required in a denial of access to public records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In my July 10th determination, I directed the Department to identify the statute it is claiming to redact juvenile information from the responsive records. Based on the Department’s response, it remains unclear what specific statute the Department is claiming applies to this portion of the records. The Department is advised that when claiming Exemption (a), a records custodian must cite a statute that either specifically or by necessary implication exempts the requested records from disclosure as required by the Public Records Law. See G. L. c. 4, §7(26)(a). Consequently, I find the Department must cite a statute that specifically or by necessary implication permits it to redact portions of the requested records. Further, in my July 10th determination, I indicated that it was unclear what information relating to an individual was redacted from the responsive records or how the redacted portions fall within the first and/or the second clause of Exemption (c). Based on the Department’s response, it remains unclear what information was redacted from the responsive records. In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact portions of the responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the record. 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).

Marya Caristi SPR20/1227 Page 5 August 4, 2020 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 Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Kernan