Todd Wallack v. Randolph, Town of - Town Clerk (SPR 20211870)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2021 SPR21/1870 Cheryl D. Sass Town Clerk & Registrar 41 South Main Street Randolph, MA 02368 Dear Ms. Sass: I have received the petition of Todd Wallack of WBUR appealing the response of the Town of Randolph (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2021, Mr. Wallack requested, “[d]ocuments showing the names of sworn officers within the Randolph Police Department who were terminated for misconduct, agreed to resign or retire to resolve misconduct accusations, or resigned or retired with a pending internal affairs investigation since January 1, 2010.” The Town responded on July 23rd. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR21/1870, 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. 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. 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

Cheryl D. Sass SPR21/1870 Page 2 August 11, 2021 The Town’s July 23rd Response In its July 23rd response, the Town cited Exemption (c) to withhold the requested records. 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 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). 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 July 23rd response, the Town states, “… we have found records of three incidents that are potentially responsive to … [the] request. We object to providing you with the specifics of these three incidents on the basis that the employees' names and employment actions/status are personnel files or information and/or that these are materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy [and the] …documents are exempt from disclosure … pursuant to M.G.L. ch. 4, section 7, clause twenty-sixth (c). The requested records relate to specifically named individuals and employment or disciplinary decisions, not to investigations, and are therefore exempt from production.”

Cheryl D. Sass SPR21/1870 Page 3 August 11, 2021 Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld. The Town must clarify this. As a result, I find that the Town has not met its burden to withhold the requested records under Exemption (c). Order Accordingly, the Town is ordered to provide Mr. Wallack with a response to the 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: Todd Wallack