Joseph Viglione v. Medford, City of - Police Department (SPR 20221566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2022 SPR22/1566 Lieutenant Joseph W. Casey Records Access Officer Medford Police Department 100 Main Street Medford, MA 02155 Dear Lieutenant Casey: I have received the petition of Joseph Viglione appealing the response of the Medford Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 2, 2022, Mr. Viglione requested “. . . copies of public records that were part of the alleged criminal Clerk Magistrates hearing which was held on September 24, 2021. These are the photographs, videos, etc. . . .” Previous Appeal This request was the subject of a previous appeal. See SPR22/1410 Determination of the Supervisor of Records (July 5, 2022). In the July 5th determination, I ordered the Department to provide Mr. Viglione with a response to the request. On July 7, 2022, the Department provided its response. Unsatisfied with the Department’s response, Mr. Viglione petitioned this office and this appeal, SPR22/1566, 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 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

Lt. Joseph W. Casey SPR22/1566 Page 2 July 22, 2022 exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 July7th Response In its July 7, 2022 response, the Department cites Exemption (c) and WBZ-TV4 v. Dist. Att’y for the Suffolk Dist., 408 Mass. 595 (1990) to withhold the responsive records. The Department argues that “the publication of the video/photograph would constitute an unwarranted invasion of personal privacy.” The Department, quoting WBZ-TV4, 408 Mass. at 601, asserts that, “the individual should ‘be free from the additional “notoriety and disgrace” that could attend publication (in dramatic videotape format)’…” 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., 391Mass. 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. 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. 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).

Lt. Joseph W. Casey SPR22/1566 Page 3 July 22, 2022 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). The Department has not met its burden to withhold the responsive records pursuant to Exemption (c). Although the Department states they believe it may withhold the responsive records under Exemption (c), the Department has not sufficiently explained its reasoning. It is uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Department’s response, whether this information is available from other sources. The Department must clarify this matter. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, based on the Department’s July 7th response, I find the Department has not met its burden of specificity in responding to the request, and in denying access to the records under Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Viglione 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Viglione