Daniel N. Marx v. South Hadley, Town of - Police Department (SPR 20222414)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2414 Kimberly Ottomaniello Records Access Officer South Hadley Police Department 41 Bridge Street South Hadley, MA 01075 Dear Ms. Ottomaniello: I have received the petition of Daniel N. Marx, Esq., of Fick & Marx, LLP, appealing the response of the South Hadley Police Department (Department/SHPD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Attorney Marx requested copies of the following records in any form (including photo and video) concerning, reflecting, or comprising: [1] the incidents of graffiti in the 1837 Hall at Mount Holyoke College on or about October 6, 2021; October 9, 2021; and, December 6, 2021; [2] the incident of graffiti in the Mead Hall at Mount Holyoke College on or about March 27, 2022; [3] [an identified person], a former student of Mount Holyoke College, who graduated [on a specific date]; and [4] communications between Mount Holyoke College, including its Department of Public Safety and Service, and the Department concerning the above-listed incidents and/or [named person]. On October 12, 2022 and October 20, 2022, the Department provided Attorney Marx with responses, which included seven (7) pages of responsive records. Unsatisfied with the responses, Attorney Marx petitioned this office and this appeal, SPR22/2414, 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 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

Kimberly Ottomaniello SPR22/2414 Page 2 November 7, 2022 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) (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 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 Department’s October 12th and 20th responses In the October 12, 2022 and October 20, 2022 responses, the Department cited Exemptions (a) and (c) in support of the redactions to the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Department recited the provisions of Exemption (a) but did not cite a

Kimberly Ottomaniello SPR22/2414 Page 3 November 7, 2022 statute. 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. 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. Sch. 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: (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

Kimberly Ottomaniello SPR22/2414 Page 4 November 7, 2022 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 Department restates the type of information exempted in an Exemption (c) analysis. Current appeal After receiving the October 12th response and production of records, on October 14th, Attorney Marx contacted the Department seeking additional records responsive to his October 7th request. In his October 14th letter, Attorney Marx contends that certain records were not included. Specifically, Attorney Marx states, “[t]here is no question that the SHPD possesses in its own files one or more reports (and possibly other documents as well) that MHC has provided to the SHPD about the graffiti incidents at issue. The SHPD’s own report (Report 21-1001-OF) expressly states that the requested records from MHC were ‘attached’ to that report and ‘uploaded’ to the SHPD’s system. Burden of specificity; duty to segregate exempt content The Department’s October 12th and 20th responses did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how Exemptions (a) and (c) allows the Department to redact the requested records). It is also not clear from the Department’s response, what record(s) the Department may be withholding in their entirety. The Department must identity the records in its possession, if any. Further, based on Attorney Marx’s claim, it is unclear if the Department possesses additional records responsive to the request. Specifically, the Department must clarify whether it possesses reports pertaining to the incident, as stated above. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). As a result, I find the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Attorney Marx with a response to his request 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 the response to this office at pre@sec.state.ma.us. Attorney Marx may appeal the substantive nature of the Department’s response within ninety

Kimberly Ottomaniello SPR22/2414 Page 5 November 7, 2022 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Daniel N. Marx, Esq.