Ginny S. Kremer v. Southborough, Town of - Police Department (SPR 20202408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2020 SPR20/2408 Antoine Fares, Esq. Norris, Murray & Peloquin, LLC Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Attorney Fares: I have received the petition of Attorney Ginny Kremer appealing the response of the Southborough Police Department (Department) to request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on September 16, 2020, Attorney Kremer requested “…records regarding an April 2019 investigation into the Recreation Department.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/2056 Determination of the Supervisor of Records (November 5, 2020). In my November 5th determination, the Department provided a supplemental response on November 4, 2020, addressing Attorney Kremer’s appeal. Unsatisfied with the Department’s response, Attorney Kremer petitioned this office, and SPR02/2408 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 or redacted portion of the responsive record. 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

Antoine Fares, Esq. SPR20/2408 Page 2 December 17, 2020 Current Appeal The Department’s September 29, 2020 response included an incident report redacted pursuant to Exemptions (a) and (c). In its September 29th response, the Department indicates “[t]he requested records contain information pertaining to a Department investigation that is exempt from disclosure under the Criminal Offender Information (‘CORI’) Act as it operates through Exemption (a)…[t]he requested record also contain information exempt from disclosure for privacy reasons. M.G.L. c. 4 §7(26)(c).” 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.” 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. The definition of CORI is as follows: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative

Antoine Fares, Esq. SPR20/2408 Page 3 December 17, 2020 information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. c. 6, § 167 (emphasis added). In Attorney Kremer’s appeal, she contends “[t]he Town’s initial response took the…position that all…records requested are protected under the CORI Act-even though the investigation did not result in any arrest or any criminal proceeding.” Despite the Department’s responses, I find it is unclear how the redactions constitute CORI information. G. L.c. 66, § 10 (a). Specifically, it remains unclear how the redactions are “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. G. L. c. 6, § 167. Consequently, the Department has not met its burden to redact the requested records under the CORI Act. 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). 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).

Antoine Fares, Esq. SPR20/2408 Page 4 December 17, 2020 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. In its September 29th response, the Department indicates “disclosure of certain details in the requested Incident Report would result in personal embarrassment to the individual who is the subject of the investigation. Such disclosure would also harm reputation. For those reasons, the Department has redacted this information to protect the individual’s privacy.” In its November 4th response, the Department indicates “Ms. Kremer seek[s] information about an individual who is now a private citizen…she is merely questioning the handling of a purely disciplinary matter by the Board of Selectman. Clearly in the present case, the privacy interests are greater and public interest is substantially lower compared to Boston Globe Media Partners case.” Upon review of Department’s responses, it remains unclear how redacted information constitutes intimate details of a highly personal nature, or how disclosure of the redacted information would result in personal embarrassment to an individual of normal sensibilities. It is also uncertain from the Department’s responses whether the information is available from other sources, or is the type of information the second clause of Exemption (c) is designed to protect in the manner described in PETA. The Department must clarify these matters. Conclusion Accordingly the Department is ordered to provide Attorney Kremer with a response to his 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: Ginny Kremer, Esq.