James Sullivan v. Bellingham, Town of - Town Clerk (SPR 20202392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2020 SPR20/2392 Denis C. Fraine Town Administrator Town of Bellingham 10 Mechanic Street Bellingham, MA 02019 Dear Mr. Fraine: I have received the petition of James Sullivan, of WFKI AM FM Radio Group, appealing the response of the Town of Bellingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan requested: “a latest revised copy of the [T]own’s Reverse 911 dialer list modified no later than the date you sign[ed] for this certified mail request that you have on file with Code Red. Requested is a printed paper version of data and an electronic compatible data form that Code Red can export from their PBX dialer system to an Asterisk system. (csv tab delimited, xlsx, comma based).” Prior appeal The responsive records were the subject of prior appeals. See SPR20/2104 Determination of the Supervisor of Records (November 10, 2020); SPR20/1980 Determination of the Supervisor of Records (October 29, 2020). I closed my November 10th determination on the understanding that the Town intended to provide a supplemental response to Mr. Sullivan. The Town provided a response on November 23, 2020, providing additional information regarding its Exemption (c) and (n) claims. Unsatisfied with this response, Mr. Sullivan petitioned the Supervisor and this appeal, SPR20/2392, was opened as a result. Current appeal In its November 23, 2020 response, the Town asserts that the requested records are exempt from disclosure pursuant to Exemptions (c) and (n) of the Public Records Law. 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

Denis C. Fraine SPR20/2392 Page 2 December 9, 2020 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. The Supreme Judicial Court (Court) has recently opined that there may be a greater privacy interest in compilations of data than there would be for individual pieces of data. See Boston Globe Media Partners, LLC v. Dept. of Public Health, 482 Mass. 427, 444 (2019) (finding that in certain circumstances, “there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes). The Court went on to identify 4 factors that may affect the privacy interest in a compilation of data: “1) the extent to which multiple indices could be compared to reveal private information, (2) the availability from other sources of the information in the requested indices, (3) the risk from disclosure of identity theft or fraud, and (4) the extent to which disclosure could result in unwanted intrusions.” Id. at 442. In light of this decision, I find that the Town must provide additional information regarding how these factors apply to the requested record. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and

Denis C. Fraine SPR20/2392 Page 3 December 9, 2020 schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage." PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety.'" Id. at 289-90. The PETA decision further provides that "[because the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." PETA also provides that "these two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating 'reasonable judgment' and vice versa." Id. at 290. With respect to Exemption (n), the Town states that the requested record “is used for emergency preparedness, including during major active or potential public safety events, such as terrorist events and shootings based on the location of said event in the community.” The Town asserts that “[s]ince the CodeRED program is used to alert individuals who have provided their personal information during an emergency, if the information was inappropriately used by a third-party for unauthorized purposes, such communications could mimic such authorized emergency alerts to members of the public during public safety emergencies, such as shootings or terrorism attacks, or interfere with or be confused with such official alerts.” Based on the Town’s response, I find it has not met its burden to withhold the requested record pursuant to Exemption (n). Although the Town explains that this record is maintained as part of an emergency preparedness alert system, it is unclear how the particular information contained in the record, namely, the names, phone numbers, and addresses of individuals, resembles the records listed in the statute. See id. at 289. Where the record bears little ----

Denis C. Fraine SPR20/2392 Page 4 December 9, 2020 resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Conclusion Accordingly, the Town is to provide Mr. Sullivan with a response to the request, 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: James Sullivan Janelle M. Austin, Esq., KP Law, P.C.