Collin Dias v. Fall River, City of - Office of the City Clerk (SPR 20211024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1024 Alison Bouchard City of Fall River One Government Center, Room 227 Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Collin Dias appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 24, 2021, Mr. Dias requested “[a]ny MCAD complaint received by the City of Fall River within the last year.” Previous appeal This request was the subject of a previous appeal. See SPR21/0709 Determination of the Supervisor of Records (April 5, 2021). In my April 5th determination, I found the City had not met its burden of specificity in withholding the requested records under Exemptions (a) and (c) of the Pubic Records Law. G. L. c. 4, § 7(26)(a), (c). Accordingly, I ordered the City to provide Mr. Dias with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the City provided a response on April 15, 2021. Unsatisfied with the City’s response, Mr. Dias petitioned this office and this appeal, SPR21/1024, 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 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

Alison Bouchard SPR21/1024 Page 2 May 5, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s April 15th response In its April 15, 2021 response, the City asserts that the requested records are exempt from disclosure pursuant to Exemptions (a) and (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 Att’y 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. Under Exemption (a), the City asserts, “MCAD complaints are expressly exempt from public disclosure by statute. Specifically, pursuant to section 1 of the Massachusetts Commission Against Discrimination Rules of Procedure, ‘the record in every charge pending before the Commission shall be confidential and exempt from M.G.L. c. 66 and 66A pursuant to M.G.L. c. 4, 7 (26)(f).’ See 804 CMR 1.04(1). . . .” In its March 9, 2021 response, the City also stated, “[s]imilarly, the MCAD, through its regulations, specifically 804 CMR 1.21 makes the complaint

Alison Bouchard SPR21/1024 Page 3 May 5, 2021 confidential and exempt from public disclosure.” The Commission’s regulation, 804 C.M.R. 1.21(1)(a) provides in relevant part: Access to Commission Materials and Restrictions to Personal Data (1) Case Information Available to the Public. The following requirements apply to a request for case information by the public, all subject to 804 CMR 1.21(3): (a) Predetermination. The investigative file in every charge under investigation, including the complaint, shall be confidential and exempt from public disclosure. . . . 804 C.M.R. 1.21(1)(a). 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 Prop. 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).

Alison Bouchard SPR21/1024 Page 4 May 5, 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. Under Exemption (c), the City explains that “[c]omplaints filed in the Massachusetts Commission Against Discrimination almost always contain highly-sensitive personal information. . . . For these reasons, the MCAD has determined that Charges of Discrimination (complaints) will not, under any circumstances, be released to the general public until, at a minimum, the Investigative Disposition has been completed.” The City further states that per the Commission’s guidelines, “. . . the Charge of Discrimination (the documents that you have requested) may become public after an Investigative Disposition has been issued. . . . At this stage of the investigative process, the public’s right to know is completely outweighed by the Commission’s ability to investigate a claim, and by the privacy interests of the parties and witnesses involved.” In light of the City’s response, which cites to the Commission’s regulation that renders the complaints of open cases under investigation confidential, I find the City has met its burden to withhold the requested records from disclosure under 804 C.M.R. 1.21(1)(a), as it operates through Exemption (a) of the Public Records Law. Therefore, I decline to opine on the City’s Exemption (c) claim supporting non-disclosure of the requested records. See Lafferty v. Martha’s Vineyard Commission, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107, *7 (holding that the Martha’s Vineyard Commission could withhold records concerning advisory opinions, requests for advisory opinions, and preliminary inquiries or initial staff reviews, based on the Ethics Commission’s statute and regulations requiring confidentiality of these records). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Dias is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias