Alan J. Dias v. Halifax, Town of (SPR 20221998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 14, 2022 SPR22/1998 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1823 Determination of the Supervisor of Records (August 19, 2022). In my August 19th determination, I ordered the Town to clarify whether segregable portions of the responsive call log could be provided. Subsequently, on August 29, 2022, the Town responded by providing Mr. Dias with records in redacted form. Unsatisfied with the Town’s response, 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. 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. SPR22/1998 Page 2 September 14, 2022 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. Current Appeal In his appeal petition, Mr. Dias contends that “the Town has failed to provide how these phone numbers fall under Exemption (c)” and further argues that “the Town has no right to segregate any of the information requested.” Mr. Dias reiterated his concerns in an email to this office on August 31, 2022. The Town’s August 1st and August 29th Responses In its August 1, 2022 and August 29, 2022 responses, the Town indicates that it has redacted personal phone numbers from the responsive records pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(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

Cesar P. Calouro, Jr. SPR22/1998 Page 3 September 14, 2022 carrying out their duties in a law abiding and efficient manner. Id. at 292. In its August 1st response, under Exemption (c), the Town argues “that cell phone numbers of private citizens are private information exempt from disclosure under exemption (c).” In its August 29, 2022 response, and in a subsequent response on September 9, 2022, the Town provides Mr. Dias with call logs in redacted form. In the August 29th response, the Town explains that “personal cell phone numbers have been redacted in order to protect private information.” Personal phone numbers favor a finding of non-disclosure. The public interest in disclosure of personal phone numbers does not outweigh the privacy interests associated with the redacted information. Consequently, I find that the Town has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Dias is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Alan Dias Noemi Kawamoto, Esq.