Mary Serreze v. New Bedford, City of - Police Department (SPR 20202288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2288 Officer Michael Boswell Records Access Officer City of New Bedford Police Department Central Records Bureau 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Mary Serreze, the News Director of WBSM 1420 AM, appealing the response of the City of New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Serreze requested “the booking photo of [an identified person] from the Town of Carver who committed an armed robbery in February 2019 at JC’s Variety Store in New Bedford.” Ms. Serreze states that a representative from the Department informed her office that the Department “does not, as a matter of policy release booking photos” (emphasis omitted). Unsatisfied with the Department’s response, Ms. Serreze petitioned this office and this appeal, SPR20/2288, 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 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

Officer Michael Boswell SPR20/2288 Page 2 December 8, 2020 or redacted portion of the responsive record. Current Appeal Subsequent to the opening of this appeal, the Department provided a supplemental response on November 25, 2020 explaining that it is withholding the requested booking photograph pursuant to the privacy clause of Exemption (c). 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.

Officer Michael Boswell SPR20/2288 Page 3 December 8, 2020 In its November 25th response, the Department states that it “declines to produce the requested booking photograph pursuant to G. L. c. 4, section 7(26)(c)….” The Department cites Boston Globe Media Partners v. Chief Justice of the Trial Court, in which the Supreme Judicial Court states that a custodian “should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public against the risk that disclosure would unfairly result in adverse collateral consequences to the accused.” Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Services, 484 Mass. 279, 292 (2020) (quoting Boston Globe Media Partners, LLC v. Chief Justice of the Trial Court, 483 Mass. 80, 102 (2019)). The Court further suggested that “[i]f the request had sought records concerning the alleged misconduct of a private person, there might be little to offset the risk of adverse collateral consequences arising from such disclosure unless there were investigative reasons for public disclosure of the records.” Id. at 292. With respect to the requested record, the Department states that it “is unaware of any circumstances that would make the subject of the records requested a public official.” The Department concludes that “[w]here the records requested involve a private person, and there are no investigative reasons for disclosure, the Department has not identified anything top offset the risk that disclosure would unfairly result in adverse collateral consequences to the accused.” Based on the Department’s response, I find it has not met its burden to withhold the requested record pursuant to the privacy clause of Exemption (c). Specifically, the Department has not demonstrated that disclosure of the requested record “would unfairly result in adverse collateral consequences to the accused,” or that the public interest in the record does not substantially outweigh the individual privacy interest. See id.; see also PETA, 477 Mass. at 291 (establishing balancing test for privacy clause analysis). Conclusion Accordingly, the Department is ordered to provide Ms. Serreze with a response to this request, to be provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Mary Serreze, WBSM 1420 AM Elizabeth Treadup Pio, Esq., Assistant City Solicitor