John Lajoie v. Worcester, City of - Police Department (SPR 20201329)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2020 SPR20/1329 Janice Thompson, Esq. Assistant City Solicitor City of Worcester Law Department 455 Main Street; Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of John M. Lajoie, of Lajoie Investigations, Inc., appealing the response of the City of Worcester Police Department (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lajoie requested all records pertaining to an identified automobile accident. The City’s Police Department provided a responsive accident reconstruction report and crime scene photographs. In its July 30, 2020 response, the City explained that it is not in possession of any further records, except a personal cell phone extraction report. The City is withholding an extraction report from a private citizen’s cell phone under Exemptions (a) and the privacy clause of Exemption (c) of the Public Records Law. As a result of the City’s denial, Mr. Lajoie petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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…”); 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 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

Janice Thompson, Esq. SPR20/1329 Page 2 August 21, 2020 burden of establishing the applicability of an exemption). Exemption (c) Exemption (c) applies to: 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). 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). The Department is withholding the personal cell phone extraction report under the second clause of Exemption (c). Second clause of (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.

Janice Thompson, Esq. SPR20/1329 Page 3 August 21, 2020 In its July 30th response, the City states, “[t]his record contains a large volume of highly sensitive and personal information, including but not limited to financial information, account numbers, GPS location information, personal communications, call logs, personal cell numbers and email addresses of private citizens, and personal photographs including those of an intimate nature. The City has determined that these records implicate the privacy interests of a large number of individuals whose data and information is included in the extract.” The extract withheld pertains to the contents of a private citizen’s cell phone. The City contends that the information contained in this record is the type of information that Exemption (c) is designed to protect. The City posits, “[t]he content of this record constitutes intimate details of a highly personal nature, not readily available from other sources, the disclosure of which would cause embarrassment to an individual of normal sensibilities.” In addition, the City asserts, “[a] government entity is required to examine the privacy interest at issue in light of the context of the disclosure. The City has determined that the substantial privacy interests associated with the cell phone extract record outweigh the public interest in disclosure.” Based on the City’s July 30th response, I find the City may withhold the personal cell phone extraction report under the privacy clause of Exemption (c). Conclusion Whereas, I find that the Department has met its burden of specificity to withhold the record in its entirety under the second clause of Exemption (c), I decline to opine on the Department’s Exemption (a) and G. L. c. 93H claim regarding personal financial information. I consider this appeal closed. If Mr. Lajoie is dissatisfied with this determination, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: John M. Lajoie