Ryan Kath v. Boxborough, Town of - Town Clerk (SPR 20222374)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2022 SPR22/2374 Rebecca J. Harris, Ph.D. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Ryan Kath, of NBC Boston, appealing the response of the Town of Boxborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2022, Shira Stoll, of NBC Boston, requested the following records: [1] any document, including but not limited to a contract or report, indicating that a private investigator was hired by the Town to investigate matters within the Boxborough Police Department. [2] any payments/invoices provided to or from a private investigator hired by the Town to investigate matters within the Boxborough Police Department. The Town responded on October 17, 2022. Unsatisfied with the response, Mr. Kath petitioned this office and this appeal, SPR22/2374, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Rebecca J. Harris, Ph.D. SPR22/2374 Page 2 November 2, 2022 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. The Town’s October 17th response In its October 17, 2022 response, the Town advised that it had no documents for request Number 2. For Request Number 1, the Town cited Exemptions (c) and (f) of the Public Records Law to withhold the requested records. Current appeal In his appeal, Mr. Kath asserts, “[t]he Town has cited the ‘personal privacy exemption’ [c] as a reason to withhold the records in their entirety. It is important to note that the legislature has amended that exemption to explicitly make investigations into law enforcement subject to disclosure.” Exemption (c) Exemption (c) permits the withholding of: 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. 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). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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:

Rebecca J. Harris, Ph.D. SPR22/2374 Page 3 November 2, 2022 (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. In its response, the Town advised, “…the Town is in possession of documents that would be responsive to your request, but those documents are being withheld in their entirety …” The Town further opined, “[w]hen a document contains unresolved allegations regarding a particular person, the courts have held that the release of the document may implicate the privacy rights of the individual mentioned therein as it can result in innuendo and speculation as to the subject’s reputation and professional competence.… In this case, the Town has carefully considered the information requested in light of exemption (c), and considered the factors set forth in the PETA case, cited above. After this careful, individualized review, the Town has determined that documents exist which relate to unresolved allegations against a specifically named employee(s) of the Boxborough Police Department. Therefore, such documents are being withheld at this time pursuant to exemption (c) to protect the reputational interests of the employee(s).” Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld pursuant to Exemption (c) of the Public Records Law. 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

Rebecca J. Harris, Ph.D. SPR22/2374 Page 4 November 2, 2022 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. Att’y 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 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. In its response, the Department asserts that “… the disclosure of communications responsive to your first bullet point above would prejudice the ongoing investigation. Accordingly, the responsive records are being withheld in their entirety at this time under exemption (f) of the Public Records Law because the disclosure of these particular records may compromise the ongoing investigation and review of the matter. Upon review, the Department’s response did not provide supporting information on how the investigative process is ongoing. It is additionally uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). As a result, I find that the Department has not met its burden to withhold the requested records under Exemptions (c) and (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Kath 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, Manza Arthur Supervisor of Records cc: Ryan Kath