Todd Wallack v. Natick, Town of (SPR 20211979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2021 SPR21/1979 Kathleen Lentini Communication/Information Officer Natick Town Hall, 1st Floor 13 East Central Street Natick, MA 01760 Dear Ms. Lentini: I have received the petition of Todd Wallack of WBUR appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2021, Mr. Wallack requested, “… copy of a report created by Crevier & Ryan LLP for the town, investigating allegations that [named person] assaulted and harassed a police dispatcher.” The Town responded on August 4, 2021. Unsatisfied with the Town’s response, Mr. Wallack petitioned this office and this appeal, SPR21/1979, 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. The Town’s August 4th Response In its August 4th response, the Town cited Exemption (c) to withhold the requested 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

Kathleen Lentini SPR21/1979 Page 2 August 18, 2021 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 August 4th response, the Town states, “… [it] is possession of a record responsive to the request ... The record is a core personnel record… utilized by the Town in making employment decisions.” The Town further explained, “… the record requested was created before December 31, 2020, the effective date of chapter 253 of the Acts of 2020 [and] the record is not related to a ‘law enforcement misconduct investigation’ because the investigation concerned conduct … not related to [named] Officer’s law enforcement duties.” The Town contends that recent changes to Exemption (c) took effect December 31, 2020, and the record requested “was created before December 31, 2020.” Based on this contention, the Town claims the requested record is exempt under Exemption (c). Possession, Custody, and Control The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G.

Kathleen Lentini SPR21/1979 Page 3 August 18, 2021 L. c. 66, § 10(a)(ii). The Town received Mr. Wallack’s request on August 4, 2021, after the recent changes to Exemption (c) took effect. 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. As a result, I find that the Town has not met its burden to withhold the requested records under Exemption (c). The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Wallack with a response to its request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Wallack may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack