Dexter Blois v. Westborough, Town of - Police Department (SPR 20212218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2021 SPR21/2218 Jenn Kirkland Recreation Director Westborough Town Hall 34 West Main Street Westborough, MA 01581 Dear Ms. Kirkland: I have received the petition of Dexter Blois appealing the response of the Town of Westborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 9, 2021, Mr. Blois requested, “a copy of the most recent country club membership excel file.” Previous appeal This request was the subject of a previous appeal. See SPR21/1999 Determination of the Supervisor of Records (August 20, 2021). The Town provided a response on August 26, 2021. Unsatisfied with the Town’s response, Mr. Blois petitioned this office and this appeal, SPR21/2218, 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. 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

Jenn Kirkland SPR21/2218 Page 2 September 14, 2021 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 Town’s August 26th Response In its August 26, 2021 response, the Town stated, “the email addresses and phone numbers may validly be withheld from disclosure, and [the Town is] prepared to provide Mr. Blois with a copy of the membership list so redacted. The redactions are pursuant to Exemption (c), G.L. c. 4, § 7(26)(c), which exemption applies, in part, to any other materials or data [other than personnel records and medical information] relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Town further explained that “[r]ecords relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy may be withheld or redacted. Attorney General v. Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 626 n.2 (1980). Private e-mail addresses and cell phone numbers are considered information covered under Exemption (c), and the disclosure thereof would constitute an unwarranted invasion of personal privacy.” 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).

Jenn Kirkland SPR21/2218 Page 3 September 14, 2021 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. In its August 26th response, the Town stated, “[u]nder these factors, the personal email addresses and phone numbers (the vast number of which are likely cell phone numbers) reveal private information, not generally available in any other sources, and the disclosure of which could result in unwanted intrusions.” The Town asserted that, “when the members of the Westborough Golf Club provided their phone numbers and email addresses to the Club, it was only so that the Club had a way to contact them regarding membership or golf course matters. They did not do so with an expectation that this personal information would be distributed, and the members’ privacy interests in this information clearly greatly outweighs any ‘right’ of the general public to obtain this identifying information. Indeed, this personal information is generally not otherwise available.” The Town has met its burden in responding to this request for records. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Blois 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Dexter Blois Wendy Mickel, Town Clerk Brian W. Riley, Esq.