Alan J. Dias v. Halifax, Town of (SPR 20221823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2022 SPR22/1823 Cesar P. Calouro, Jr. Office of Information Technology Town of Halifax 499 Plymouth Street Halifax, MA 02338 Dear Mr. Calouro: I have received the petition of Alan Dias appealing the response of the Town of Halifax (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2022, Mr. Dias requested “any and all photographs taken from April 15, 2022 thru May 15, 2022 from [a specific] phone or camera,” and “to view and inspect the phone for phone call incoming and outgoing from April 15, 2022 thru May 15, 2022.” The Town responded on August 1, 2022, and again on August 9, 2022, providing responsive photographs, and denying the request to inspect the call log. Unsatisfied with the Town’s responses, Mr. Dias appealed, and this case 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(b)(iv); 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). 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 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

Cesar P. Calouro, Jr. SPR22/1823 Page 2 August 19, 2022 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 Town’s Responses In its August 1, 2022 and August 8, 2022 responses, the Town provides responsive photographs, and states that it is withholding the call log from inspection pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 26(c). 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 Prop. 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). 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. Under Exemption (c), the Town argues “that cell phone numbers of private citizens are private information exempt from disclosure under exemption (c), and allowing Mr. Dias to inspect the phone would allow him access to information he has no right to access.” Although portions of the call log may fall under Exemption (c), it is unclear how this record can be withheld in its entirety. Particularly, it is unclear how non-exempt data is so inextricably intertwined with exempt data that the record cannot be segregated and redacted. The

Cesar P. Calouro, Jr. SPR22/1823 Page 3 August 19, 2022 Town is advised that any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Consequently, the Town must clarify whether segregable portions of the call log can be provided. Conclusion Accordingly, the Town is ordered to provide Mr. Dias with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Alan Dias Noemi Kawamoto, Esq.