Martin Y. Benson v. Acton, Town of - Town Clerk (SPR 20231499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 13, 2023 SPR23/1499 Eva Szkaradek Records Access Officer Town of Acton Town Hall 472 Main Street Acton, MA 01720 Dear Ms. Szkaradek: I have received the petition of Martin Y. Benson appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2022, Mr. Benson requested the following records: [1] All emails sent or received between [identified individuals], from October 1, 2021 to the present…[;] [2] All emails, to or from [a named individual], that relates in any way to the ten key words from June 1, 2020 to the present…[;] [3] All emails, to or from [a named individual], that relates in any way to the five key words; from July 1, 2018 to present…[;] [4] All police reports that relate to the investigation of Zoom bombing incidents which occurred at school committee meetings on December 17, 2020 and January 7, 2021 as well as the Select Board meeting on January 11, 2021. Prior Appeals The requested records were the subject of prior appeals. See SPR22/1137 Determination of the Supervisor of Records (May 26, 2022); SPR22/1534 Determination of the Supervisor of Records (July 20, 2022); SPR22/2329 Determination of the Supervisor of Records (October 31, 2022); SPR23/0175 Determination of the Supervisor of Records (February 10, 2023) and SPR23/0655 Determination of the Supervisor of Records (April 12, 2023). In my April 12th determination, I closed the appeal after the Town indicated that it would provide a further response. In a June 27, 2023 email, Mr. Benson appealed the Town’s prior March 30, 2023, response regarding Item 2 of the request. As a result of Mr. Benson’s petition this appeal, SPR23/1499, was opened. 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

Eva Szkaradek SPR23/1499 Page 2 July 13, 2023 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 town 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. 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 Town’s March 30th response Additional Records – Item 2 In the Town’s March 30, 2023 response, it stated the following: On June 15, 2022, the Town sent Mr. Benson approximately 20 emails containing all the responsive, non-privileged requested under Numbers 1 through 3, above. On October 17, 2022, in response to follow-up requests from Mr. Benson, the Town provided a privilege log showing all documents redacted or withheld pursuant to attorney-client privilege in response to his April request. On May 12, 2022, the Town sent Mr. Benson all of the documents in the Town’s possession, custody or control responsive to his request Number 4, above. An additional document was discovered and sent sua sponte on December 30, 2022. At this point, the Town has fully responded to Mr. Benson’s request. He has all responsive documents in his possession, whether he chooses to believe that or not. The Town has spent dozens of hours at this point trying to get Mr. Benson the documents he seeks, all in good faith. At this point, the Town considers its obligations to Mr. Benson fulfilled, unless the Supervisor can articulate what category of documents or obligation under the Public Records Act which the Town has not fulfilled. In his current appeal, Mr. Benson claimed that the Town did not provide him with all

Eva Szkaradek SPR23/1499 Page 3 July 13, 2023 requested records regarding Item 2 of the request. In an email from the Town on July 11, 2023, the Town further explained its production regarding all requested records for Item 2 of the request: With respect to [Item 2], my understanding is that [Mr. Benson] believes there is a group email dated Dec. 18, 2020 that he expected to see in the production. I will specifically ask the Town for such an email. But, again, using the terms from his original request, the Town has already conducted multiple IT searches of the Town’s documents, including emails, for responsive documents and turned everything over, unless listed as withheld on the privilege log. If Mr. Benson can be more specific about the content or addressees of this “group email” it may be more helpful in our searching. The parties are encouraged to communicate further to determine whether any additional responsive record exists. Mr. Benson must provide the Town with further clarification regarding the requested record, to enable the Town provide the requested record. Redactions Under Exemptions (c) and (f) – Item 4 In the July 11th email, the Town also addressed Item 4 of the request and stated, “[w]ith respect to [Item 4], I believe the Town has provided the justification for the redactions, which were accepted by local news outlets. If the Supervisor believes that the Town should provide more information to justify the redactions, please order the Town to do so and we will comply.” In a July 12, 2023, email to this office and the Town, Mr. Benson objected to the Town’s response regarding Item 4. The Town’s December 30th response On December 30, 2022, the Town provided Mr. Benson with a response dated May 20, 2022, regarding the redactions and withholding of requested records pertaining to Item 4 of the request. The Town stated that the redactions and withholding of records were pursuant to Exemptions (c) and (f) of the Public Records Law. 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

Eva Szkaradek SPR23/1499 Page 4 July 13, 2023 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 clause 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). 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. Regarding the redactions, the Town explained that: You will note that certain information has been redacted pursuant to G.L. c. 4, § 7, twenty-sixth (c), the privacy exemption, and (f), the investigatory exemption. Material redacted pursuant to the privacy exemption includes the IP addresses and similar personal information associated with attendees of the meetings in question. Material redacted pursuant to both the privacy and investigatory exemptions includes victims’ names, addresses, and statements. The redacted material includes sensitive personal accounts of how racist language affected certain individuals. Redaction of this material is necessary to preserve the individuals’ privacy and to ensure that future witnesses have confidence that they can fully and honestly cooperate with law enforcement without risk that sensitive testimony will become public. See, e.g., Globe Newspaper Co. v. Police Com’r of Boston, 419 Mass. 852, 863 (1995); WBZ-TV4 v. District Atty. for Suffolk Dist., 408 Mass. 595, 603 (1990); Roman Catholic Bishop of Springfield v. Travelers Cas. and Sur. Co., 23 Mass. L. Rptr. 532, 2008 WL 650392, at *2 (Mass. Super. Ct. Jan. 7, 2008). Regarding the withholding of records, the Town stated the following: The Town is also withholding the videos of two interviews conducted during this investigation. These videos are being withheld pursuant to exemptions (c) and (f). These videos cannot be produced without disclosing the identity of the two witnesses, one of whom is a juvenile. Disclosure would deter future suspects and

Eva Szkaradek SPR23/1499 Page 5 July 13, 2023 witnesses from voluntarily cooperating with active investigations, which would serve to deprive law enforcement of a valuable investigative tool. See id. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 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. With respect to Exemption (c), based on the Town’s response, it is unclear what “similar personal information” was redacted from the records. Further it is unclear how the IP address, and the two withheld videos constitute 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 information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide additional 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. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Eva Szkaradek SPR23/1499 Page 6 July 13, 2023 As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Regarding Exemption (f), to the extent that identifying information of voluntary witnesses were redacted from the records, I find the Town may properly claim Exemption (f) in redacting such information. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). However, it is unclear how the Town cannot redact the videos or provide a transcript to preserve witness anonymity. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Mr. Benson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Mr. Benson may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Martin Y. Benson Nina Pickering-Cook, Esq. Leo Mercado