MaryLee Belleville v. Newton, City of - Law Department (SPR 20212852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2852 Alissa Ocasio Giuliani, Esq. City Solicitor City of Newton Law Department 1000 Commonwealth Avenue Newton, MA 02459 Dear Attorney Giuliani: I have received the petition of Mary Lee Belleville appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2021, Ms. Belleville requested “any documents related the Special Permit request for [a specific address] that was approved by the Land Use Committee and then Withdrawn Without Prejudice before the City Council.” The City responded on September 28, 2021, citing Exemption (c) for redacting the responsive records. Unsatisfied with the City’s response, Ms. Belleville appealed, and this case 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 agency or municipality 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 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

Alissa Ocasio Giuliani, Esq. SPR21/2852 Page 2 November 5, 2021 custodian must provide the responsive records. Current Appeal In her appeal petition, Ms. Belleville explains that she writes “to appeal the redaction of letters that were sent to various members of the Newton Land Use Committee and City Council related to a Special Permit Request.” Ms. Gelleville explains that she and “the opposing neighbors, have spoken at every public hearing on this matter and have always been required to state [their] name and address for the record and that information is routinely included in the meeting minutes with a summary of [their] comments.” She contends that “it seems incomprehensible that redacting all of the letters that were received in regards to this project was appropriate since it was just an alternative means of offering public comment.” The City’s September 28th Response In its September 28, 2021 response, the City cites Exemption (c) of the Public Records Law for redacting responsive records. G. L. c. 4, § 7(26)(c). 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. 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 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) ----------------------------

Alissa Ocasio Giuliani, Esq. SPR21/2852 Page 3 November 5, 2021 (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. Under Exemption (c), the City argues the following: In requests such as [this] where [the requestor] seek[s] copies of letters submitted in support or opposition to a matter, [the City has] determined that disclosure of personally identifiable information amounts to an unwarranted invasion of privacy, would have a chilling effect on a citizen’s right to report their concerns to the City and can potentially expose those residents to retaliation. Therefore, the City appropriately redacts personally identifiable information from all documents that fall into this category. Where the City has narrowly redacted the responsive records, I find the City has met its burden in responding to Ms. Belleville’s request. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Belleville 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Lee Belleville