Lisa Parr v. Gloucester, City of - City Clerk (SPR 20213291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3291 Joanne Senos Records Access Officer City of Gloucester 9 Dale Ave Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Lisa Parr appealing the response of the City of Gloucester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 13, 2021, Ms. Parr requested “a copy of the most recent city resident list in electronic tabular format.” Ms. Parr requested the records include “full name, mailing and physical address, date of birth and occupation.” The City provided a response on December 20, 2021. Unsatisfied with the City’s response, Ms. Parr petitioned this office and this appeal, SPR21/3291, 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. 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. 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

Joanne Senos, RAO SPR21/3291 Page 2 January 3, 2022 The City’s December 20th Response In its December 20, 2021 response, the City cited Exemption (c) pertaining to redactions made to the full date of births in the requested records. 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 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 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 December 20th response, the City explained it was “unable to provide the full date of birth on your public records request #21-529. This is to protect the privacy of our residents. [The City] can provide the year of birth as we do in our Street List book. Please let [the City] know if [it] should upload the resident list with the year of birth for [Ms. Parr].”

Joanne Senos, RAO SPR21/3291 Page 3 January 3, 2022 Based on the December 20th response, the City has not demonstrated how the release of the full date of birth is likely result in personal embarrassment to an individual of normal sensibilities or contain intimate details of a highly personal nature information or is not available from other cources. PETA, 477 Mass. at 292. The City must clarify these issues regarding withholding the full date of birth. Conclusion Accordingly, the City is ordered to provide a response to Ms. Parr 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: Lisa Parr Chip Payson, Esq. Marie Giambanco