Taylor S. Lavallee v. Springfield, City of (SPR 20210335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2021 SPR21/0335 Andrea L. Stone Springfield Police Department 130 Pearl Street Springfield, MA 01105 Dear Ms. Stone: I have received the petition of Taylor S. Lavallee, Esq., appealing the response of the Springfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 9, 2020, Attorney Lavallee requested all records pertaining to a certain investigation within the possession of the Department. Previous Appeal This request was the subject of a previous appeal. See SPR20/2449 Determination of Supervisor of Records (December 22, 2020). In my December 22nd determination, I found it was unclear whether the Department had provided a response to the request. The Department was ordered to provide Attorney Lavallee with a response in accordance with the Public Records Law, its Regulations and the order. The Department provided said response on January 12, 2021, which included responsive records, and also denying a portion of the request pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Attorney Lavallee petitioned this office and this appeal 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. 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

Andrea L. Stone SPR21/0335 Page 2 February 25, 2021 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. Current Appeal In its January 12, 2021 response, the Department states it “… must deny the release of the video recording of the SPD’s interview of the vehicle operator because the City believes that the requested video is exempt from disclosure as public records pursuant to Public Records Law M.G.L. c.4 § 7 …” The Department cites Exemption (c) and indicates the “video recording of the SPD’s interview of the vehicle operator be [sic] any medical records are being withheld.” Exemption (c) Exemption (c) permits the withholding of: 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 exemption 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 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 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

Andrea L. Stone SPR21/0335 Page 3 February 25, 2021 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. Based on the Department’s response, I find it has not met its burden of specificity in claiming Exemption (c) to withhold the video recording in its entirety. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department has not explained how disclosure of the video would constitute an unwarranted invasion of personal privacy. Specifically, it is unclear whether the video contains intimate details of a highly personal nature, or how disclosure of the video would result in personal embarrassment to an individual of normal sensibilities. It is also uncertain from the Department’s response whether the record is available from other sources, or is the type of information contemplated in PETA. See PETA, 477 Mass. at 292. Additionally, the Department’s response fails to address the balancing test outlined in PETA. Id. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Lavallee with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Lavallee may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Taylor S. Lavallee, Esq.