Sarah L. Ryley v. Springfield, City of - Office of the City Clerk (SPR 20213138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3138 Marvenia Frazier-Shubrick City Clerk Public Records Coordinator City of Springfield 36 Court Street Springfield, MA 01103 Dear Ms. Frazier-Shubrick: I have received the petition of Sarah L. Ryley of the Boston Globe appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2021, Ms. Ryley requested, “… data, preferably in .csv, or .xlsx format, pertaining to 911 calls to the [identified] congregate care facilities … from Jan. 1, 2010, or the earliest date that is exportable, through the date upon which the data for this request is generated … includ[ing] calls routed to all agencies, such as police, fire, and EMS.” Additionally, Ms. Ryley noted that “[t]his data should include a record for each incident, and all fields that are exportable and contain non-exempt information, including but not limited to [a]ll unique identifiers(i.e. call number, case number and/or incident ID) …” The City responded on November 24, 2021. Unsatisfied with the City’s response, Ms. Ryley petitioned this office and this appeal, SPR21/3138, 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 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

Marvenia Frazier-Shubrick SPR21/3138 Page 2 December 15, 2021 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 City’s November 24, 2021 response In its November 24th response, the City cited Exemptions (a) and (c) of the Public Records Law to withhold the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its November 24th response, the City cited, G. L. c. 41, § 97D indicating that the records are exempt from disclosure. G. L. c. 41, § 97D provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G.L. c. 41, § 97D. The City stated, “[t]hese are records involving possible psych calls, domestic disturbances, calls involving crimes against children, and overdoses.” The City asserted, “[t]he applicable statute that permits the City to withhold certain records pursuant to exemption (a) is MGL c.41, § 97D,

Marvenia Frazier-Shubrick SPR21/3138 Page 3 December 15, 2021 which effectively states that all records of domestic violence, including actual “reports of abuse perpetrated by family or household members as defined in c.209A, § 1, and all communications between police officers and victims of such offenses or abuse shall not be released to the public (as a public record).” In her appeal petition, Ms. Ryley asserts that, “ … the Springfield's Emergency Communications Department … provided 21 separate PDFs of call logs, one for each address. Portions of the column showing the ‘reason’ codes were redacted.” Based upon the City’s response, it is unclear as to how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. 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).

Marvenia Frazier-Shubrick SPR21/3138 Page 4 December 15, 2021 When analyzing a privacy claim, there is 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 response, the City claimed, “[s]ections of the log(s) were redacted in accordance with M.G.L. c.4, §7 (26)(c) also known as the ‘Privacy Exemption’ … the name(s) of the calling party/parties, street address number(s), dates of birth, social security numbers, and any other personal information of any individuals that may be listed in the log(s) were redacted. Additionally, because the City cannot determine if the any of the telephone number(s) that may be listed on the log(s) are residential telephone numbers or cellphone numbers, all telephone numbers listed in the logs were redacted.” Based on the City’s response, it is unclear how the redacted information contains intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the City did not satisfy its burden in responding to this records request. Order Accordingly, the City is ordered to provide Ms. Ryley 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: Sarah L. Ryley