Michael Sandorse v. Brookline, Town of - Police Department (SPR 20202146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2020 SPR20/2146 Neil Harrington Records Division Supervisor Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received the petition of Michael Sandorse appealing the response of the Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sandorse requested the police report for an identified motor vehicle accident. Previous Appeal This request has been the subject of a previous appeal. See SPR20/1314 Determination of the Supervisor of Records (August 19, 2020). In my August 19th determination, I found the Department had not met its burden to redact the records pursuant to Exemptions (a), (c) and (f) of the Public Records Law. The Department provided a supplemental response to Mr. Sandorse on August 28, 2020, providing an additional explanation regarding its exemption claims. Unsatisfied with this response, Mr. Sandorse petitioned this office and this appeal, SPR20/1314, 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 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

Neil Harrington SPR20/2146 Page 2 November 19, 2020 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. Current Appeal In its August 28, 2020 response, the Department indicates that it has redacted addresses and license numbers from the responsive report pursuant to Exemptions (c) and (f) 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

Neil Harrington SPR20/2146 Page 3 November 19, 2020 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 August 28th response, the Department indicates that it has redacted “home addresses and license numbers….for all parties involved in the accident…as well as addresses for witnesses that were occupants in Mr. Gilman’s vehicle….” Based on the Department’s response, I find it has not met its burden of specificity to redact the addresses of participants in the accident. The names and addresses of adults are not considered “intimate details of a highly personal nature,” and therefore do not fall within the privacy clause of Exemption (c). Cape Cod Times v. Sheriff of Barnstable Cnty., 443 Mass. 587, 595 (2005). The addresses of adults are also generally available from other sources, such as street lists. Accordingly, where there is no privacy interest in these addresses, they may not be withheld pursuant to Exemption (c). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its response, the Department asserts that “[m]aking public the personal information of individuals that contact the Department in regards to investigations could deter individuals in the future for fear of subjecting them to the risk of unwanted publicity that would not exist if not for contacting the Department to investigate an incident.” The Department additionally states: “[i]t is in the public interest to encourage people to speak freely with police concerning matters under investigation, and forcing the public disclosure of this personal information which would identify individuals would operate in derogation, and not in support of, this important public interest.”

Neil Harrington SPR20/2146 Page 4 November 19, 2020 Based on the Department’s response, I find it may permissibly redact the names and identifying information of voluntary witnesses pursuant to Exemption (f). See Antell, 52 Mass. App. Ct. at 248. Conclusion Accordingly, the Department is ordered to provide Mr. Sandorse 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: Michael Sandorse