Rich Saltzberg v. Middlesex District Attorney's Office (SPR 20212335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2335 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex County District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Middlesex County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 26, 2021, Mr. Saltzberg requested from the Wilmington Police Department (Department) records relating to an identified death. The Department provided a response on July 22, 2021 stating, “the case was further investigated by the Massachusetts State Police.” The Office provided a further response to Mr. Saltzberg’s records request on July 28, 2021. Unsatisfied with the Office’s response, Mr. Saltzberg petitioned this office and this appeal, SPR21/2335, 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

Daniel M. DeBlander, Esq. SPR21/2335 Page 2 September 21, 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 Office’s July 28th Response On July 28, 2021, the Office explained it has “identified five reports authored by the MSP unit assigned to this Office, Middlesex SPDU, as responsive to [Mr. Saltzberg’s] request. MSP Report Numbers 2019-110-547, -547/1, -547/2, -547/3, -547/4. Please be advised that after a review of this matter, these records are exempt from disclosure as they relate to a specifically identified individual and public dissemination of these reports would constitute an unwarranted invasion of personal privacy. M.G.L. c. 4, § 7, Twenty-sixth (c) (the privacy exemption).” 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 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

Daniel M. DeBlander, Esq. SPR21/2335 Page 3 September 21, 2021 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 the July 28th response, the Office “considered three factors in assessing the weight of the privacy interest at stake in these reports: (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, Inc. v. Department of Agricultural Resources, 477 Mass. 280, 291-292 (2017).” Based on the July 28th response, I find that the Office did not satisfy its burden in withholding these records pursuant to Exemption (c). It is uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Office must provide additional information with respect to the above balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Saltzberg with a response to the request, provided 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: Rich Saltzberg, Martha’s Vineyard Times Susan M. O'Neil