Anastasia E. Lennon v. New Bedford, City of - Clerk's Office (SPR 20230979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/0979 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Anastasia Lennon, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2023, Ms. Lennon requested the following: [1.] The report submitted this year (2023) by [a specified firm] to the City of New Bedford/its personnel department for its investigation into multiple complaints/allegations against [a named officer] of the New Bedford Police Department, including all findings. [2.] All written records within the New Bedford Personnel Department on any internal affairs investigations it conducted or reports it filed, including interviews, evidence documentation, and complaint filings against [the named officer]of the New Bedford Police Department. The date range of this second part of the request is from June 1, 2022 to March 31, 2013. The City responded on April 18, 2023, providing a fee estimate. Ms. Lennon paid the fees on April 19, 2023. The City responded on May 10, 2023, citing Exemption (c) of the Public Records Law for withholding responsive records. Unsatisfied with the City’s response, Ms. Lennon 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 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

Nicholas DeMarco, Esq. SPR23/0979 Page 2 May 25, 2023 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s May 10th Response In its April 18, 2023 response, the City indicates that “there are 221 pages of records,” and in its May 10, 2023 response, the City states that it “has verified that these materials, in full, qualify as personnel files in the form of a disciplinary report; as such, the City is withholding these materials pursuant to 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 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).

Nicholas DeMarco, Esq. SPR23/0979 Page 3 May 25, 2023 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. In this case, the City has not met it burden in responding to Ms. Lennon’s request. Specifically, where the request involves records of investigations into the conduct of a police officer, it is unclear how Exemption (c) could apply to withhold or redact any of the requested records. The City has not shown how the requested records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Additionally, it is unclear from the City’s response which specific records the City intends to withhold. The City must clarify this. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the City is ordered to provide Ms. Lennon with a response to her 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: Anastasia Lennon