Patrick Higgins v. Swansea, Town of - Police Department (SPR 20221434)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2022 SPR22/1434 Marc R. Haslam Chief of Police Swansea Police Department 1700 G.A.R. Highway Swansea, MA 02777 Dear Chief Haslam: I have received the petition of Patrick Higgins appealing the response of the Swansea Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 2, 2022, Mr. Higgins requested a named officer’s shift schedule. On June 2, 2022, the Town responded and provided a further response on June 3, 2022. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1434 Determination of the supervisor of Records (May 25, 2022). In my May 25th determination, I found that the Department intended on providing a further response to Mr. Higgins. On June 21, 2022, the Department responded. Unsatisfied with the Department’s response Mr. Higgins petitioned this office and this appeal, SPR22/1434, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see 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

Marc R. Haslam SPR22/1434 Page 2 July 6, 2022 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). The Division’s June 21st response In its June 21, 2022 response, the Department cited Exemption (c) of the Public Records Law to withhold the requested 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). 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). 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 Prop. 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). 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.

Marc R. Haslam SPR22/1434 Page 3 July 6, 2022 The Department states, “[t]here are a multitude of nefarious reasons an individual may request a police officer’s schedule. Knowing the officer’s schedules puts the police officer and his/her family at serious risk of harm to them personally or their family while they are at work or home.” The Department further states, “[t]his type of information is clearly an unwarranted invasion of a specifically named individual, putting them and their family at personal risk. The disclosure which clearly is in favor of the officer’s privacy, versus the public’s right to know.” The Department concludes, “[t]his information is not available anywhere else and is exclusively held by the police department as private, personal information accessible only to departmental staff.” Based on the Department’s response, it is unclear how the work schedules are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. 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. As a result, I find that the Department did not satisfy its burden in withholding these records pursuant to Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Higgins 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: Patrick Higgins