Leo Flotron v. Amherst, Town of - Police Department (SPR 20213355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2022 SPR21/3355 Captain Ronald A. Young Police Department Town of Amherst 111 Main Street Amherst, MA 01002 Dear Captain Young: I have received the petition of Leo Flotron appealing the response of the Town of Amherst Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 22, 2021, Mr. Flotron requested property records, including the property owner’s signature. Previous appeal This request was the subject of a previous appeal. See SPR21/2457 Determination of the Supervisor of Records (October 8, 2021). The Department provided a response on October 18, 2021. Unsatisfied with the Department’s response, Mr. Flotron petitioned this office and this appeal, SPR21/3355, 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

Captain Ronald A. Young SPR21/3355 Page 2 January 11, 2022 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 Department’s October 18th Response In its October 18, 2021 response, the Department cited Exemptions (c) and (f) for the redacting and withholding of records. 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 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.

Captain Ronald A. Young SPR21/3355 Page 3 January 11, 2022 In the Department’s October 18th response, it cited Exemption (c) for redactions made to Notice of Vehicle Removal records provided to Mr. Flotron. The Department explained “the redactions were limited to personal data for calling parties and other community members, including the contact information for the properly custodian that signed (or stamped) the tow sheets in question.” The Department claimed “that personal and contact data is protected.” The Department further explained, “Exemption C permits withholding or redaction of records relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department redacted “contact information for complaints and callers unrelated to the matter at hand have been redacted from the call log that [Mr. Flotron] received.” Based on the Department October 18th response, I find that the Department did not meet its burden to withhold certain requested records in their entirety under Exemption (c). Particularly, while portions of the Notice of Vehicle Removal and call logs may fall within Exemption (c), it is uncertain how the “tow sheets,” in their entirety, contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is additionally uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Department 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. The Department must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of

Captain Ronald A. Young SPR21/3355 Page 4 January 11, 2022 whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. The Department’s October 18th response cited Exemption (f) explaining “[r]eleasing the identity of those involved us part of log and the tow documents would be detrimental to future encounters with these same community members. The custodian who signed the so-called tow sheet is doing so to comply with the law, see G.L. 266 § 120D.” The Department also stated, “Exemption (f) also allows the withholding of contact information to encourage the public to contact this agency or to cooperate in the future even in the most minor of instances that constitute police action. In this instance, the property custodian is required by law to make notification to the Chief of Police ostensibly through the manager or the owner of the property. The Courts have outlined this and have ruled that Exemption F permits the permanent withholding of any details that would tend to identify complainants, witnesses or voluntary informants, even in those instances where an investigation has concluded.” Based on the Department October 18th response, to the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, it remains unclear how all of the information contained in the requested records falls under Exemption (f). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Flotron with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Captain Ronald A. Young SPR21/3355 Page 5 January 11, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Leo Flotron Joy Jolie