Verena Hultsch v. Plymouth, Town of - Police Department (SPR 20222812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2022 SPR22/2812 Sergeant Benjamin Dexter Records Access Officer Plymouth Police Department 20 Long Pond Road Plymouth, MA 02360 Dear Sergeant Dexter: I have received the petition of Verena Hultsch appealing the response of the Plymouth Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 28, 2022, Ms. Hultsch requested records relating to a specific incident which occurred in October 2022. The Department responded on November 28, 2022 and December 8, 2022. Unsatisfied with the Department’s responses, Ms. Hultsch petitioned this office, and this appeal, SPR22/2812, 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 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 Department’s Responses In its November 28, 2022 response, the Department stated that it was redacting and/or 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

Sgt. Benjamin Dexter SPR22/2812 Page 2 December 21, 2022 withholding the records under Exemption (c) of the Public Records Law. The Department issued a further response on December 8, 2022, which included the release of an additional record with redactions under Exemption (c). 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. 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 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 November 28, 2022 response, the Department stated that “[t]he response to your request may have been redacted or completely withheld. If so, it was done for the following reason(s): G. L. c. 4, § 7(26)(c) – Exemption C – Privacy Information.” In its December 8, 2022 response, the Department clarified that “…only the driver’s license number of Ms. Hultsch herself was redacted, pursuant to G. L. c. 4, § 7(26)(c) as data relating to a specifically named

Sgt. Benjamin Dexter SPR22/2812 Page 3 December 21, 2022 individual, the disclosure of which may constitute and unwarranted invasion of personal privacy.” The Department further stated that “…upon reviewing Ms. Hultsch’s request there was a supplemental report authored by the responding officer that was inadvertently withheld. The record has been provided to her, albeit with additional redactions to medical files and for information concerning injuries and medical treatment to an identifiable individual, pursuant to G. L. c. 4, § 7(26)(c).” Based on the Department’s claim, to the extent that the records contain medical information, the Department may permissibly withhold such portions from disclosure. Further, I find the Department may permissibly redact the driver’s license number under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Verena Hultsch