Olivia Falcigno v. Lynnfield, Town of - Police Department (SPR 20211038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2021 SPR21/1038 Captain Nick Secatore Lynnfield Police Department 55 Summer Street Lynnfield, MA 01940 Dear Captain Secatore: I have received the petition of Olivia Falcigno appealing the response of the Lynnfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2020, Ms. Falcigno requested “. . . a copy [] of the police report from Monday on Lowell St. taken by [an identified Officer].” Previous appeal This request was the subject of a previous appeal. See SPR21/0136 Determination of the Supervisor of Records (February 4, 2021). In my February 4th determination, I found the Department had not met its burden of specificity in explaining its redactions under Exemption (c). Accordingly, I ordered the Department to provide Ms. Falcigno with a response, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided a response on February 23, 2021. Unsatisfied with the Department’s response, Ms. Falcigno petitioned this office and this appeal, SPR21/1038, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Falcigno’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Captain Nick Secatore SPR21/1038 Page 2 May 6, 2021 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. 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 Department’s February 23rd response In its February 23, 2021 response, the Department explains “[t]he redacted portion . . . contains details that if released, would result in embarrassment to an individual of normal sensibilities, they are intimate details of a highly personal nature as defined by the second clause of the privacy exemption specifically reputation, and the information is not available from other sources.” The Department further states, “[t]he second clause of the privacy exemption states portions of records containing intimate details are exempt unless there is a paramount public interest in disclosure. No paramount public interest exists in this case.” 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.

Captain Nick Secatore SPR21/1038 Page 3 May 6, 2021 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 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, it is unclear how the redacted portion can be withheld under Exemption (c). Particularly, it is uncertain how the information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment of an individual of normal sensibilities. See PETA, 477 Mass. 292. Additionally, I find the Department has not met its burden of specificity in demonstrating that the public’s interest in obtaining the redacted information does not substantially outweigh the privacy interest of the parties involved. The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Ms. Falcigno with a response, 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: Olivia Falcigno