Christopher Falco v. Rockland, Town of (SPR 20231709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2023 SPR23/1709 Christine Campanile Assistant Town Clerk Town Clerk’s Office 242 Union Street Rockland, MA 02370 Dear Ms. Campanile: I have received the petition of Christopher Falco appealing the response of the Town of Rockland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 5, 2023, Mr. Flacon requested the following: Any and all emailed complaints to the BOH and/or the Town of Rockland in regards to [a named individual] and the Incident at [a specified] restaurant. Any and all violations and inspection reports of [the] restaurant since the time of grand opening. The investigation report of this incident and recommendations The Town responded on July 18, 2023, providing numerous responsive records, and citing Exemption (c) of the Public Records Law for withholding others. See G. L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Mr. Falco 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 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

Christine Campanile SPR23/1709 Page 2 August 8, 2023 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 July 18th Response In its July 18, 2023 response, the Town provides “the responsive records regarding [Mr. Falco’s] violation and inspection report request(s)” and cites Exemption (c) of the Public Records Law for withholding “the requested complaint(s), investigation report and recommendation(s).” 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 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. In its July 18, 2023 response, under Exemption (c), the Town argues that “the requested

Christine Campanile SPR23/1709 Page 3 August 8, 2023 complaint(s), investigation report and recommendation(s) [Mr. Falco has] requested are personnel file/information and are materials relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Please be advised that I have previously addressed the application of Exemption (c) to the responsive records in a separate appeal. See SPR23/1504 Determination of the Supervisor of Records (July 14, 2023). Likewise, in this case, despite the Town’s response, I find the Town has not met its burden to withhold the responsive records under Exemption (c) of the Public Records Law. Particularly, the Town has not demonstrated that the responsive records constitute one of the core categories of personnel information that may be withheld under Exemption (c), nor has the Town explained how the records contain intimate details of a highly personal nature. PETA, 477 Mass. at 292. Further, based upon the Town’s response, it is unclear how the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Conclusion Accordingly, the Town is ordered to provide Mr. Falco 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: Christopher Falco