Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20230462)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2023 SPR23/0462 Alexandra Hayden Records Access Officer Chelmsford Police Department 3 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: I have received the petition of Stanley Mazurczyk appealing the response of the Chelmsford 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 11, 2022, Mr. Mazurczyk stated, “[a]ttached is July 2021 Chelmsford Police Department (Department) Verizon invoice. Page 5 reveals [a named person] operates Town of Chelmsford (Town) paid for redacted cell phone. It’s unclear if [the named person] is Department employee exploiting Town funds. I request Town provide record of [the named person’s] employment status at that and current time. Reason for redacting cell phone number assigned to her.” Prior appeals This request was the subject of previous appeals. See SPR22/2707 Determination of the Supervisor of Records (December 8, 2022) and SPR23/0202 Determination of the Supervisor of Records (February 14, 2023). The Department responded on March 1, 2023. Unsatisfied with the response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/0462, 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). 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

Alexandra Hayden SPR23/0462 Page 2 March 22, 2023 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 March 1st response In its March 1, 2023 response, the Department cited Exemption (c) of the Public Records Law to redact the personal cell phone number. Current appeal In his appeal, Mr. Mazurczyk states that the “Department’s response doesn’t support [named person’s] personal wireless phone number transfer of billing responsibilities to Department Verizon account. The form lists only [named person] as a transfer subscriber ... It’s still unclear who [named person] was/is/or exists. Department confirmed she wasn’t and currently isn’t employed by the Town. It’s still unclear why Town pays, out of my taxes, for personal cell phone account in her name or why she qualifies for redaction of the phone number under Exemption (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. 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

Alexandra Hayden SPR23/0462 Page 3 March 22, 2023 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 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 asserted, “[named] Lieutenant had been on a phone plan with [named person] prior and when Verizon transferred the phone number over [named person’s] name remained. This was a Verizon internal issue, as [named person] was a listed user prior to switching. [Named person] does not operate this phone by any means, she was not a town employee at that time nor is she currently employed by the Town of Chelmsford. [Named] Lieutenant was and is employed by the Town of Chelmsford and uses this phone. [Named person] had communicated about switching his phone over to the Town’s plan with a representative from Verizon who advised him to call and have the phone plan switched ...” The Department further advised, “[t]he personal cell phone number needed to be redacted as it is vital in protecting personnel and or medical Information. Therefore, I am required by statute to withhold this information and redact it in its entirety based upon exemption (c) the privacy exemption.” Upon review, I find the Department may redact the personal cell phone number under Exemption (c) of the Public Records Law. Where the Department has responded to the original request, I find the basis of Mr. Mazurczyk’s appeal is unclear. Mr. Mazurczyk is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, I am unable to issue a determination at this time. Mr. Mazurczyk may wish

Alexandra Hayden SPR23/0462 Page 4 March 22, 2023 to clarify his specific objections to the Department’s response. Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk