Denise Coffey v. Barnstable County Sheriff's Office (SPR 20222499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2022 SPR22/2499 Sheriff James M. Cummings Barnstable County Sheriff’s Office 6000 Sheriff’s Place Bourne, MA 02532 Dear Sheriff Cummings: I have received the petition of Denise Coffey, of The Cape Cod Times, appealing the response of the Barnstable County Sheriff’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 6, 2022, Ms. Coffey requested all records pertaining to an event on August 22, 2022 in which the Office’s patrol boat rescued an individual who fell overboard near Chappaquiddick Island. Prior appeal This request was the subject of a previous appeal. See SPR22/2265 Determination of the Supervisor of Records (October 18, 2022). The Office provided Ms. Coffey with an October 28, 2022 response, claiming Exemption (c) to withhold portions of the responsive records. As a result of the Office’s October 28th response, Ms. Coffey petitioned this office, and the current appeal was opened. 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) (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

Sheriff James Cummings SPR22/2499 Page 2 November 17, 2022 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 Office’s October 28th response In its October 28, 2022 response, the Office explains that it redacted the records to withhold the identity of the victim of this incident. The Office asserts: The victim has asked that the Office protect his identity from public disclosure, and dissemination of his identity along with the details of his falling overboard and subsequent rescue could subject him to public embarrassment. The individual is a private citizen and not a public employee subject to heightened scrutiny. The documents the Office has provided permit a full public examination of the performance of the Office and its employees, and disclosure of the victim’s name will not shed further light on how well the [Office] performed its duties. Citing, U.S. Department of Defense v. Fed. Labor Rel. Auth., 510 U.S. 487, 497 (1994). Further, the Office asserts, “[o]n the other side of the equation, disclosure would result in personal embarrassment to the victim, as it would any person of normal sensibilities, and the information is not otherwise available from other public sources. Citing, [PETA], 477 Mass. 280, 292 (2017).” 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

Sheriff James Cummings SPR22/2499 Page 3 November 17, 2022 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. Upon review of the records by the Public Records Division, and provided to Ms. Coffey, this review of the redacted records reveals that the Office redacted both the name of the boat that the victim/individual fell overboard from, and the name of the victim/individual who fell from this particular boat and who is the subject of a wellness check by the Office. As such, I find that the Office may permissibly withhold the identity of the victim/individual who is the subject of a wellness check and rescue by the Office, pursuant to Exemption (c). However, I find the Office did not meet its burden to withhold the name of the boat pursuant to Exemption (c). Specifically, it is unclear how the name of the boat is an intimate detail of a highly personal nature. Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to review the records, redact where necessary and provide Ms. Coffey with responsive records, 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: Denise Coffey