Nathaniel Stevens, Esq. v. Plymouth, Town of (SPR 20230595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2023 SPR23/0595 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Attorney Nathaniel Stevens appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2023, Attorney Stevens requested “any applications for, and correspondence related to, putting [a specified list of] properties under Mass General Laws Chapters 61 or 61A tax classifications ... [including] all public records from the year 2010 to the present.” Following further correspondence, the Town responded on March 14, 2023, providing numerous responsive records in redacted form. Unsatisfied with the Town’s response, Attorney Stevens appealed, and this case 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. Att’y 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. 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

Connor Anderson SPR23/0595 Page 2 April 10, 2023 Current Appeal In his appeal petition, Attorney Stevens contends the following: [I]n 13 of the 21 produced documents, the Town redacted the dollar amounts for “Gross sales from agricultural or horticultural use”; “Gross sales from agricultural or horticultural use”, and “Amount received under MA or US Soil Conservation or Pollution Abatement Program.” . . . Here, there is no “specifically named individual” involved. This is information of a company ... a private for-profit Massachusetts corporation which is not an individual with ... any right to “personal privacy.” . . . As a result of the classification, the municipality foregoes tax revenue in exchange for the public benefit attributable to the use of the land as “agricultural or horticultural.” The information on the form is used to verify whether the landowner is entitled to the benefit from the reduced real estate tax rate. Without the transparency of public records disclosure, there is no way for the public to verify whether the land is properly classified under this program. The Town’s March 14th Response In its March 14, 2023 response, the Town cites Exemption (c) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(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. 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

Connor Anderson SPR23/0595 Page 3 April 10, 2023 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the Town argues that it “has redacted private income amounts because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material. These redactions have been made to the record only where necessary and no whole pages have been redacted.” Based on the Town’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Stevens with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Stevens, Esq.