Randall Block v. Newton, City of (SPR 20202559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2021 SPR20/2559 Karyn Dean City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Ms. Dean: I have received the petition of Randall Block appealing the response of the City of Newton (City) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 22, 2020, Mr. Block requested the following records: “Email addresses that currently receive the Mayor's periodic Updates. . .” Unsatisfied with the response, Mr. Block petitioned this office and this appeal, SPR20/2559, was opened as a result. Prior Appeal This request was the subject of a previous appeal. See SPR 20/2227 Determination of the Supervisor of Records (November 30, 2020). In my November 30, 2020 determination, I found that the custodian did not meet its burden of specificity when claiming Exemption (c). 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 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

Karyn Dean Page 3 SPR20/2559 January 7, 2021 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 burden of establishing the applicability of an exemption). The City’s December 14th response In its December 14th response the City asserted it “continues to maintain that the document you requested is not subject to disclosure, pursuant to the second clause of Exemption (c), which pertains to ‘any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. M.G.L. c. 4 § 7(26)(c).’” Current Appeal In his December 22nd appeal petition Mr. Block stated that the City’s response “does not provide any evidence that the people who subscribe to the Mayor's Update in fact have a reasonable expectation of privacy.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under 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 info1mation 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).

Karyn Dean Page 3 SPR20/2559 January 7, 2021 This exemption 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 December 14th response, the City states, “…the City has determined that the individuals who have provided their private emails addresses have a reasonable expectation of privacy in this information and that the disclosure of this aggregation of private emails would constitute an unwarranted invasion of that privacy interest such that disclosure is not required.” It is unclear how the requested email addresses relate to specifically named individuals, as required for the application of Exemption (c). The City must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Block with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Randall Block